Chapter 6 - State protection

6.1. Introduction - General principles
1. 6.1.1. Surrogate protection
2. 6.1.2. Multiple nationalities
3. 6.1.3. Timing of analysis
4. 6.1.4. Unable or unwilling - A blurred distinction - No requirement for state complicity
5. 6.1.5. Presumptions
6. 6.1.6. Nexus
7. 6.1.7. Burden and standard of proof and rebutting the presumption
8. 6.1.8. Source of protection
6.2. Stateless claimants

6. State protection

6.1. Introduction - General principles

The issue of state protection was extensively canvassed by the Supreme Court of Canada in Ward.^{Note 1} The context for the discussion of this topic is the requirement in the definition of Convention refugee that claimants be unable, or by reason their fear of persecution, unwilling to avail themselves 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 and it is not enough to simply assert a subjective belief that protection is not available.^{Note 2}

State protection must be considered in context.^{Note 3} The contextual approached was explained by the Court in Gonzalez Torres^{Note 4} as follows:

[37]…state protection cannot be determined in a vacuum. When undertaking a contextual approach in determining whether the refugee claimant has rebutted the presumption of state protection, many factors ought to be considered, including the following:
The nature of the human rights violation;
The profile of the alleged human rights abuser;
The efforts that the victim took to seek protection from authorities;
The response of the authorities to requests for their assistance, and
The available documentary evidence.

Reference should be made to Chairperson Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, November 13, 1996 and to Chairperson Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, May 1, 2017 for an analysis of state protection as it relates to gender-related persecution and claims involving sexual orientation and gender identity and expression.^{Note 5}

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).^{Note 6}

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 they might avail themself 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.^{Note 7}

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.^{Note 8}

Some jurisprudence suggests that the Board should assess the subjective fear of the claimant before addressing the objective basis of his fear, including the availability of state protection. See for example, Troya Jimenez; Pikulin,^{Note 9} and Moreno,^{Note 10} where the Court said that “the state protection issue should not be a means of avoiding a clear determination concerning the subjective fear of persecution”. In Lopez,^{Note 11} the Court allowed that “there is nothing wrong in doubting the truth of certain facts, which might otherwise suggest credibility concerns, but nevertheless treating them as true for the purpose of considering state protection.” [emphasis added]

A claimant who is not at risk does not need state protection and therefore, the issue need not be addressed.^{Note 12}

6.1.4. Unable or unwilling - A blurred distinction - No requirement for state complicity

The Convention refugee definition refers to inability or unwillingness to avail of state protection, however, the distinction between "unable" (physically or literally unable) and "unwilling" (not wanting) has become blurred.^{Note 13}

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.^{Note 14}

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")^{Note 15} 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."^{Note 16}

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.^{Note 17}
The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. … nothing wrong with this, if the Board is satisfied that there is a legitimate fear, and an established inability of the state to assuage those fears through effective protection. The presumption is not a great leap.^{Note 18}

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.^{Note 19}

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.^{Note 20}

In Hinzman,^{Note 21} the Federal Court of Appeal held that the presumption of state protection described in Ward applies equally to cases where the state is alleged to be the agent of persecution. However, where agents of the state are themselves the source of persecution, the presumption of state protection can be rebutted without exhausting all avenues of recourse in the country.^{Note 22}

6.1.6. Nexus

In Badran,^{Note 23} 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.

6.1.7. Burden and standard of proof and rebutting the presumption

In Flores Carrillo,^{Note 24} the Federal Court of Appeal stated that there are three different factual realities and legal concepts which should not be confused. They are the burden of proof, the standard of proof and the evidentiary burden to rebut the presumption of state protection.

In answering the certified question, the Court summarized the law as follows:

A refugee who claims that the state protection is inadequate or non-existent bears the evidentiary burden of adducing evidence to that effect and the legal burden of persuading the trier of fact that his or her claim in this respect is founded. The standard of proof applicable is the balance of probabilities and there is no requirement of a higher degree of probability than what that standard usually requires. As for the quality of the evidence required to rebut the presumption of state protection, the presumption is rebutted by clear and convincing evidence that the state protection is inadequate or non-existent.^{Note 25}

6.1.7.1 Burden of proof and obligation to approach the state

The burden or onus of showing the absence of state protection is on the claimant, not the Board.^{Note 26} This however, does not relieve the RPD of its obligation to provide clear and adequate reasons indicating why the onus was not met.^{Note 27}

A claimant is required to approach their 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.^{Note 28}

In other words, the claimant must show that it was reasonable for them not to seek state protection. However, a claimant is not required to risk their life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.^{Note 29}

In Marinaj^{Note 30}, the Federal Court found the Refugee Appeal Division’s analysis of state protection unreasonable in concluding that a claimant’s failure to approach Albanian state authorities for protection was determinative. The Court reiterated the principle that approaching state authorities is not a precondition to be recognized as a refugee. Instead, it is an element to consider in determining whether a claimant has met their burden of proof and rebutted the presumption of state protection.^{Note 31}

The Trial Division in Peralta^{Note 32} stated that a claimant is not required to show that they have exhausted all avenues of protection. Rather, the claimant has to show that they have 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. In determining if the claimant took reasonable steps, the Board is required to consider the claimant’s personal circumstances and characteristics as well as previous efforts to access state protection.^{Note 33}

Where the claimant left their country several years prior to claiming, the country conditions evidence may take on greater importance than the claimant’s efforts to seek protection.^{Note 34}

The obligation of minors to approach the state for protection requires special consideration. For example, the Court has cautioned about faulting a sexually molested child with not approaching the state for protection when the parents themselves do not do so.^{Note 35}

6.1.7.1.1. More than one authority in the country

The Court of Appeal in Zalzali^{Note 36} 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.^{Note 37}

In Chebli-Haj-Hassam,^{Note 38} 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,^{Note 39} 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.)

6.1.7.2 Standard of proof

The lack of state protection is proven on a balance of probabilities. The requirement set out in Ward that the claimant’s evidence to rebut the presumption must be “clear and convincing” does not mean a higher degree of probability than the normal standard of “more likely than not”. As explained by Létourneau, J. in Flores Carrillo:

The Ward case does not require a higher probability than what is normally required on the balance of probabilities standard to meet the legal burden… I fully agree with the finding of the judge that La Forest J. in Ward was referring to the quality of the evidence necessary to rebut the presumption and not to a higher standard of proof.

That a person “might” receive state protection is not the proper test. While no state offers perfect protection, and there will always be instances of persons who were not able to obtain adequate or any protection, the level necessary to show “adequate” state protection is a level where it is more likely than not that the individual will be protected.^{Note 40}

6.1.7.3 Rebutting the presumption of protection

In this section, there are two concepts that are discussed: the evidentiary burden, and the standard of protection a claimant must establish.

6.1.7.3.1 The evidentiary burden of “clear and convincing”

Rebutting the presumption refers to the ability of a claimant to establish that state protection is not forthcoming in their case. This is an evidentiary burden and as noted above, the question is whether there is sufficient “clear and “convincing” evidence of the state’s failure to protect. Absent an admission by the state that it is unable to protect (as was the case in Ward),^{Note 41} a claimant can establish, with “clear and convincing evidence”,^{Note 42} 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;^{Note 43}
there is evidence “…similarly situated individuals [were] let down by the state protection arrangements…;”^{Note 44}
there is evidence “…of past personal incidents in which state protection did not materialize.”^{Note 45}

The Supreme Court in Ward refers to the Federal Court of Appeal decision in Satiacum^{Note 46} 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^{Note 47}

In Kadenko,^{Note 48} 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 …”

In Alassouli,^{Note 49} the Court held that “… democracy should not be used as a proxy for state protection. There is obviously a strong relationship between the citizens’ participation in the institutions of the state on the one hand, and the effectiveness and fairness of the state’s apparatus to protect them. There is no automatic equation between the two, and an assessment of state protection must always rest on a more nuanced analysis, taking into account the particular circumstances of a claimant, as well as the state involved.”

In Varga,^{Note 50} a case concerning the availability of state protection for Roma claimants, the RPD found that Hungary is a fully functioning democracy and, as such, the presumption of adequate state protection should be given full force. The Court found that the RPD had ignored all recent National Documentation Package evidence suggesting that Hungary was not a model democratic state and, consequently, that part of the state protection analysis was unreasonable.^{Note 51}

In Shaka,^{Note 52} the Court clarified that the question as to whether the presumption has been rebutted is a factual question and that the test is the same for all countries. What varies is the amount of evidence necessary to rebut the presumption:

The newness or the age of the democracy are not necessarily demonstrative of whether the state is truly democratic. More scrutiny may be required of countries that are in transition, but there is no automatic presumption or lesser threshold as contended. The test is the same, for all countries. What may vary is the amount of evidence required to rebut the presumption.

In Hinzman,^{Note 53} the Federal Court of Appeal noted that a claimant coming from a democratic country (like the US) will have a heavy burden when attempting to show that he or she should not have been required to exhaust all of the recourses available domestically before claiming protection elsewhere. However, as noted in Katwaru,^{Note 54} democracy alone does not guarantee effective state protection,^{Note 55} it is merely an indicator of the likely effectiveness of a state institution. The Board is required to do more than determine whether a country has a democratic political system and must assess the quality of the institutions that provide state protection.

Another case that refers to the need for a contextual analysis is Loaiza,^{Note 56} where the Court noted that the analysis must begin with an assessment of the personal circumstances of the claimant and the degree of the individual risk faced. The Court noted that in some countries there may be only a weak correlation between the existence of a constitutional democracy and a willingness of the state to take effective measures against spousal abuse. See also Leon Davila,^{Note 57} where the Court noted that the Board must proceed with a fulsome and contextualized analysis of each claimant’s particular situation and that it is not enough to state broadly that there are free and general elections, and that legislation has been enacted to ensure basic standards of human rights.

6.1.7.3.2 Standard of protection

Over the years, there has been much discussion and confusion about what the standard of protection should be. The argument has boiled down to either requiring that the protection offered be adequate or that it be more than that, namely effective. To the extent that establishing that the protection offered be effective has been understood in some cases as shifting the burden to the Board, the Court of Appeal in Mudrak^{Note 58} stated that this inference is wrong.

As noted by the Court, the cases that have faulted the Board for not analyzing the operational adequacy of protection were not shifting the burden to the Board but were simply finding that the Board’s decisions could not stand “because they ignored relevant evidence or because the syllogism was flawed, which were legitimate grounds to intervene.”^{Note 59} The Court illustrates this point by referring to two cases, Hercegi^{Note 60} and Majlat^{Note 61} :

[32] For example, in [Hercegi], it was determined that the Board failed to turn its mind to the question of state protection:
[5] The reasons do not address the issue of state protection properly. They do not show whether, and if so, what, the Member considered as to provisions made by Hungary to provide adequate state protection now to its citizens. It is not enough to say that steps are being taken that some day may result in adequate state protection. It is what state protection is actually provided at the present time that is relevant. In the present case, the evidence is overwhelming that Hungary is unable presently to provide adequate protection to its Roma citizens.

[Emphasis in original]

[33] In [Majlat] the Federal Court found that the analysis did not only focus on mere speculation but was based on failures by the applicants to seek protection of the state and dismissed the judicial review:
[36] However, despite the use of language that speaks to efforts made by the Hungarian state, the RPD did not focus its state protection analysis in this case only on the mere fact that efforts had been made. Rather, when the decision is read carefully, it is apparent that it turns on the fact that the applicants failed to make a complaint to the police in 2010, failed to follow up on the 2009 complaint and did not make any complaints about the alleged sub-standard medical treatment. The RPD held that in light of these failures the applicants had not rebutted the presumption of adequate state protection because the documentary evidence, while mixed, does not establish that the Hungarian state would have been unable to address their complaints. This is made clear from the following passages in the decision:

[…]
[37] Thus, unlike the cases of Orgona, Garcia, Bors, and Kovacs,^{Note 62} the RPD here did not assess only whether the Hungarian state was making efforts to correct the plight of the Roma. Rather, it reviewed both those efforts and the adequacy of those efforts and accordingly did not apply the wrong test. Thus, this argument likewise fails.
[Emphasis in original]

The Court in Mudrak was of the view that the question that was certified by the Federal Court, namely: “Whether the Refugee Protection Board commits a reviewable error if it fails to determine whether protection measures introduced in a democratic state to protect minorities have been demonstrated to provide operational adequacy of state protection in order to conclude that adequate state protection exists?” was based on a misunderstanding of the jurisprudence and did not arise on the record. Also, the question was theoretical and not of general importance and therefore did not need to be answered.

The standard of adequate protection has been further qualified by the notion that the degree of protection required is not perfection, but adequacy.^{Note 63} In Villafranca, the Federal Court of Appeal stated:

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.^{Note 64}

In summary, according to the Federal Court of Appeal in Mudrak, the law on state protection is settled law and the apparent debate about whether protection has to be effective rather than adequate is based on a misunderstanding of the jurisprudence. It would appear that the evidence relating to measures taken by the state (also referred in some cases as “serious efforts”) to protect its citizens and the efficacy of those measures (sometimes referred to as “operational adequacy” or “effectiveness at the operational level”) are evidentiary issues, not legal tests that need to be assessed in each individual case. In this regard, each case will turn on its own facts.^{Note 65}

What is becoming clear from the case law is that it is an error to stop the analysis of state protection at the “serious efforts” level without also examining the operational adequacy of those efforts.^{Note 66} In Burai,^{Note 67} the Federal Court reiterated that the appropriate test in a state protection analysis involves the assessment of the adequacy of that protection at the operational level and not simply the state’s efforts or intentions. Determining the adequacy of state protection should focus on the actual results “in terms of what is concretely accomplished by the state”.^{Note 68}

In an earlier case, Gonzalez Camargo,^{Note 69} the Federal Court had expressed similar thinking as follows:

[27] The Board correctly identifies the principles underpinning state protection as set out in Ward and Hinzman including the claimant’s burden of providing clear and convincing evidence of the state’s inability to protect its citizens and the requirement that claimants must approach the state for protection in situations where that protection might be reasonably forthcoming. In my opinion, however, the Board failed to correctly recognize that the assessment of the adequacy of state protection involves more than a consideration of state efforts. This caused the Board to focus on state efforts and not consider the operational adequacy of state protection for the applicants and individuals in like circumstances; the proper test when considering the question of adequate state protection.

In Moran,^{Note 70} the Court explained it as follows:

[25] I pause to note that counsel for [the applicant] appears to try to distinguish between what is “adequate” protection and what is protection “effective at an operational level”. There is indeed a line of jurisprudence from this Court suggesting that “adequate” may be different from “effective”; however, these cases do not dispute that the protection needs to yield actual results... A protection that is adequate is a protection that works at the operational level. Adequacy of state protection has been held to mean that the RPD has to consider the state’s capacity to implement measures at the operational or practical level for the persons concerned.

The following appear to be the evidentiary factors that need to be considered in order to determine whether the presumption of state protection has been rebutted:

the efforts made by the claimant to obtain protection, including:

reports made to the authorities,
whether sufficient details were provided,
follow-up efforts,
whether other agencies besides the police were approached (see section 6.1.8 below for more details on this issue)

measures taken by the state and the efficacy of those measures, including:

applicable laws in place,
mechanisms to protect (police, other agencies),
enforcement efforts,
tangible results

evidence of similarly situated individuals,
particular circumstances of the claimant and profile,

addressing the basis of the claim (e.g., gender etc.), not just generalities.

6.1.8. Source of protection

As part of the assessment of what constitutes clear and convincing evidence of the state’s failure to protect, the question has arisen as to who exactly is a claimant required to approach for protection. In other words, what avenues of protection is a claimant required to exhaust before claiming international protection? At issue is whether state protection is to be provided by the police (the state organ entrusted with the role of protecting a country’s citizens) or whether other agencies play a role that the tribunal needs to consider. What those governmental and non-governmental agencies might be will depend on the country in question. What follows is a review of the jurisprudence in this area.

A number of Federal Court decisions state that it is the police force that has the primary responsibility to protect a nation’s citizens and is in possession of enforcement powers commensurate with this mandate.^{Note 71} Therefore, alternative institutions do not constitute avenues of protection per se.

An often quoted case is Flores Zepeda,^{Note 72} where the Court, in the context of a Mexican gender claim, considered a number of proposed alternate sources of protection besides the police and concluded that “… these alternate institutions do not constitute avenues of protection per se; unless there is evidence to the contrary, the police force is the only institution mandated with the protection of a nation’s citizens and in possession of enforcement powers commensurate with this mandate.” Other cases supporting this view include Barajas,^{Note 73}, Bari^{Note 74} as well as Katinszki.^{Note 75} In this latter decision, the Court stated:

14. (…) More importantly, the mandate of each of the organizations referred to by the Board (the Independent Police Complaints Board, the Parliamentary Commissioners’ Office, the Equal Treatment Authority, the Roma Police Association, the Complaints Office at the National Police Headquarters) is not to provide protection but to make recommendations and, at best, to investigate police inaction after the fact.

15. The jurisprudence of this Court is very clear that the police force is presumed to be the main institution mandated to protect citizens, and that other governmental or private institutions are presumed not to have the means nor the mandate to assume that responsibility. As Justice Tremblay-Lamer aptly stated in Zepeda v Canada (Minister of Citizenship and Immigration), 2008 FC 491, [2009] 1 FCR 237, at paras 24-25:
In the present case, the Board proposed a number of alternate institutions in response to the applicants’ claim that they were dissatisfied with police efforts and concerned with police corruption, including National or State Human Rights Commissions, the Secretariat of Public Administration, the Program Against Impunity, the General Comptroller’s Assistance Directorate or through a complaints procedure at the Office of the Attorney General (PGR).
I am of the view that these alternate institutions do not constitute avenues of protection per se; unless there is evidence to the contrary, the police force is the only institution mandated with the protection of a nation’s citizens and in possession of enforcement powers commensurate with this mandate. For example, the documentary evidence explicitly states that the National Human Rights Commission has no legal power of enforcement …

However, in Ahmed,^{Note 76} the Court stated that “while the jurisprudence has established that the police are the first line of contact where a refugee claimant fears for their safety (as opposed to asserting persecution based on, for example, sexual orientation or ethnicity), the presumption can be rebutted. The police may not always be the appropriate recourse.” In that case, the RAD found that the claimant did not make reasonable efforts to seek state protection because he had not approached the police. The Court quashed the decision because the RAD did not consider if the fact the claimant had sought protection from the Asayish, a security and intelligence organization in Iraq, constituted reasonable efforts in the overall context.

In Graff,^{Note 77} a case involving police misconduct, the Court followed the jurisprudence that holds that “the police force is presumed to be the main institution mandated to protect citizens, and that other governmental or private institutions are presumed not to have the means nor the mandate to assume that responsibility”, but went on to note that more critically in the decision of the RPD was the lack of evidence and analysis of how taking complaints to higher authorities would result in the claimant obtaining state protection.

The Court has also noted that the capacity to initiate some form of legal action is not a surrogate for state protection.^{Note 78}

Other Federal Court cases have held that assistance provided by other state agencies, such as those charged with investigating police conduct, can also be considered.

For example, in Flores Carrillo,^{Note 79} the Federal Court of Appeal upheld a decision of the RPD where the Board had concluded that the claimant had not made additional efforts to seek protection from the authorities when the local police officers did not provide protection. The Board had held that the Mexican claimant could have sought redress from National or State Human Rights Commissions, the Secretariat of Public Administration, the Program Against Impunity, the General Comptroller’s Assistance Directorate and the complaints procedure at the office of the Federal Attorney General.

In Mudrak,^{Note 80} the Court of Appeal considered the following certified question: “Whether refugee protection claimants are required to complain to policing oversight agencies in a democratic state as a requirement of assessing state protection, when no risk of harm arises from doing so?” The Court held that the question failed to meet the criteria for certification because it was not a question of general importance. In the Court view, “[t]he requirement of going to an oversight agency in a specific country is heavily fact driven.” (para 43) and “… the requirement to complain to policing oversight agencies in a democratic country in any given case is too specific and multifactorial to be certifiable.” (para 48). The Court went on to state that:

[49] … the Board needs to review the specific evidence adduced in a case before it determines if there was a requirement to go to an oversight agency. It is fact specific. It could be warranted in one case, but not in another.

In Saavedra Sanchez,^{Note 81} the Federal Court expressed the same thought as follows:

[10] I also do not accept that the Board erred by referring to agencies which may not have a direct responsibility for the provision of protective assistance, such as the Mexican Human Rights Commission. State agencies which are outside of the criminal justice system, and even a person's employer, can play a helpful role in cases like this where the initial local police response may not be adequate. In this case there were a number of alternate agencies noted by the Board which could have been approached and it is surprising that the Applicants chose not to do so in the face of the events they described.

In Ruszo,^{Note 82} the Court conducted an extensive review of the jurisprudence on state protection and with respect to pursuing other sources of police protection (in this case speaking to a police supervisor, going to a different police station, or complaining to the local Roma self-government), the Chief Justice concluded as follows:

[49] In my view, the weight of the jurisprudence establishes that, in the absence of compelling or persuasive evidence which establishes an objectively reasonable basis for refraining from fully exhausting all reasonably available avenues of state protection, it is reasonably open to the RPD to find that the presumption of state protection has not been rebutted with clear and convincing evidence.
[50] In this regard, compelling or persuasive evidence is evidence that provides an objective basis for the belief that taking any of these actions might reasonably expose the applicant to persecution, physical harm or inordinate monetary expense, or would otherwise be objectively unreasonable. It is not unreasonable to expect a person who wishes to seek the assistance and generosity of Canada to make a serious effort to identify and exhaust all reasonably available sources of potential protection in his or her home state, unless there is such a compelling or persuasive basis for refraining from doing so. In brief, this would not satisfy the requirements of the “unable” branch of section 96, discussed at paragraphs 30-33 above. And in the absence of a demonstration of an objectively reasonable well founded fear of persecution, the requirements of the “unwilling” branch, discussed at paragraph 34 above, also would not be met.

In Glonczi,^{Note 83} the RPD relied on the Federal Court decision in Mudrak^{Note 84} and the availability of police oversight agencies to conclude that there was adequate state protection for the Hungarian Roma claimants. The Court found that the RPD erred by failing to address the conflicting jurisprudence, discussed in Balogh,^{Note 85} and explaining how alternatives to adequate police protection results in state protection.

Some Federal Court cases state that protection can be provided not just by the police and state agencies but also by non-governmental agencies which receive state funding. For example, in Karoly,^{Note 86} the Court noted that “this Court has determined on numerous occasions that for the purpose of determining the existence of state protection, one can rely on the availability of state run or funded agencies and not only from the police”.

However, other Federal Court decisions hold a contrary view regarding non-state agencies. For example, in Aurelien,^{Note 87} the Court held that the Officer erred in relying on non-governmental agencies… as these organizations do not provide protection.

[16] This Court has repeatedly emphasized that the police force is presumed to be the main institution responsible for providing protection and in possession of the requisite enforcement powers. Shelters, counsellors and hotlines may be of assistance, but they have neither the mandate nor the capacity to provide protection …

[17] It is exceedingly difficult, from an evidentiary standpoint, to determine whether a non-governmental organization can be a surrogate for the state to provide protection. This is one of the policy considerations that underlies the consistent requirement in the jurisprudence that the police provide protection. Agencies have diffuse mandates and their effectiveness is hard to measure. This case amply demonstrates the rationale that underlies the jurisprudence.

The Chairperson’s Guideline on Women refugee Claimants Fearing Gender-Related Persecution, at section C.2 provides that:

… If the claimant can demonstrate that it was objectively unreasonable for her to seek the protection of her state, then her failure to approach the state for protection will not defeat her claim. Also, the fact that the claimant did or did not seek protection from non-government groups is irrelevant to the assessment of the availability of state protection.^{Note 88}

The reference in the tribunal’s reasons to efforts made by non-governmental agencies will not necessarily be fatal to the decision where the tribunal otherwise makes a reasonable finding that adequate state protection is available. As put in Naumets,^{Note 89}

[19] I agree with the applicant that the existence of efforts on the part of civil society cannot be considered as part of the assessment of state protection. This is for the reason that measures taken by NGOs are generally undertaken to plug holes in the fabric of the state. They highlight problems, rather than serving as indicia of government-based solutions… The Panel member’s error in emphasizing this evidence is not fatal, in my view, as the conclusion that state protection for victims of domestic violence in the Ukraine is adequate was a reasonable finding on all of the evidence.

If the Board relies upon alternative avenues of recourse, it should explain how these alternatives will result in adequate state protection for the claimant.^{Note 90}

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 the very early case of El Khatib,^{Note 91} 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.^{Note 92}

However, more recent case law has interpreted the law differently. For example, starting with Nizar^{Note 93} where 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,^{Note 94} 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 countries ^{Note 95}, 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 17).
… 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 28).

In Popov,^{Note 96} the claimants argued that as stateless individuals, they were not subject to the presumption of state protection and in support of their argument relied on Thabet. The Court rejected the argument and held that,

[42] Although it is true that in Thabet, the Federal Court of Appeal creates a distinction between stateless individuals and those who do have a state, one must read further. The Court answered the certified question before it as follows:
In order to be found to be a Convention refugee, a stateless person must show that, on a balance of probabilities he or she would suffer persecution in any country of former habitual residence, and that he or she cannot return to any of his or her countries of former habitual residence. (Thabet at paragraph 30) [emphasis added]
[43] Thabet clearly set outs that it is not sufficient to simply be unable to return to all countries of former habitual residence - the individual must prove that they will suffer persecution in one of those countries.
[44] In this case, [the claimants], being stateless individuals, must establish that they would suffer persecution in either Russia or the United States – their countries of former habitual residence and that they cannot return to the other. Although it is clear they cannot return to Russia, they have made their claim against the United States and as such must prove that they would suffer persecution in that country.

[45] In order to do so, they must prove not only a subjective fear but also an objective fear. This requires that they rebut the presumption of state protection and are “required to prove that they exhausted all the domestic avenues available to them before without success before claiming refugee status in Canada” (Hinzman at paragraph 46).

[46] Consequently, the RPD was correct in finding that the stateless Applicants must have exhausted all domestic avenues in order to establish that they have a well-founded fear of persecution in one of their countries of former habitual residence.

And more recently, in Khattr,^{Note 97} the court agreed with Popov that the presumption of state protection applies to stateless individuals.

Notes

Note 1

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.

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Note 2

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. See also Judge, Gurwinder Kaur v. M.C.I. (F.C., no. IMM-5897-03), Snider, August 9, 2004; 2004 FC 1089, where the Court confirmed that the test for determining whether state protection might reasonably be forthcoming is an objective one. In Camacho, Jane Egre Sonia v. M.C.I. (F.C., no. IMM-4300-06), Barnes, August 10, 2007; 2007 FC 830, the Court noted that a refugee claimant does not rebut the presumption of state protection in a functioning democracy by asserting only a "subjective" reluctance to engage the state. On the same point, see Kambiri, Nandeviara v. M.C.I. (F.C., no. IMM-9979-12), Noël, September 4, 2013; 2013 FC 930, where the Court noted that the applicant had failed to access the programs and initiatives aimed at protecting women in Namibia.

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Note 3

A case that illustrates an analysis of state protection that does not consider the relevant context is Burton, Raoul Andre v. M.C.I. (F.C., no. IMM-8199-12), Mactavish, May 24, 2013; 2013 FC 549, where the PRRA Officer failed to consider the claimant’s personal circumstances as a publicly identified criminal, a victim of inter or intra-gang violence and as someone who had cooperated with the police in the prosecution of other gang members.

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Note 4

Gonzalez Torres, Luis Felipe v. M.C.I. (F.C., no. IMM-1351-09), Zinn, March 1, 2010; 2010 FC 234. The Court elaborates further at paragraphs 37-42. An earlier iteration of a contextual approach to state protection was described in Rico Quevedo v. Canada (Citizenship and Immigration), 2006 FC 1264, at para 26.

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Note 5

For example, in Ndjavera, Eveline v. M.C.I. (F.C., no. IMM-7018-12), Rennie, April 30, 2013; 2013 FC 452, the applicant testified that she unsuccessfully sought assistance from the police and the Traditional Authority. The RPD considered it implausible that the applicant did not go on to complain to the Police Commissioner or hire a lawyer. In the Court’s view, the RPD erred in making this plausibility finding without adequate regard to the applicant’s age, culture, background and prior experiences, as set out in the Gender Guidelines. See also Hindawi, Manal v. M.C.I. (F.C., no. IMM-4337-14), Shore, May 6, 2015; 2015 FC 589, where the Court noted that it was unreasonable for the Board to find that the applicant’s fear was a mere subjective reluctance to engage the state, without having first explored the applicant’s particular circumstances.

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Note 6

Ward, supra, note 1, at 709.

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Note 7

Ward, supra, note 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 they are a national.

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Note 8

Ward, supra, note 1, at 712 and 722.

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Note 9

Troya Jimenez, Jose Walter v. M.C.I. (F.C., no. IMM-128-10), Mainville, July 7, 2010; 2010 FC 727; and Pikulin, Alexandr v. M.C.I. (F.C., no. IMM-5787-09), Martineau, October 1, 2010; 2010 FC 979.

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Note 10

Velasco Moreno, Sebastian v. M.C.I. (F.C., no. IMM-454-10), Lutfy, October 5, 2010; 2010 FC 993.

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Note 11

Lopez, Centeotl Mazadiego v. M.C.I. (F.C., no. IMM-1938-13), Simpson, May 29, 2014; 2014 FC 514. In Varon, Manuel Guillerm Mendez v. M.C.I. (F.C., no. IMM-5332-13), Russell, March 20, 2015; 2015 FC 356, the Court finds the RPD’s state protection analysis confusing because it was not clear what facts were believed and what facts were not.

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Note 12

Muotoh, Ndukwe Christopher v. M.C.I. (F.C., no. IMM-3330-05), Blais, November 25, 2005; 2005 FC 1599. However, if the claimant is at risk, it is not enough to analyze the existence of state protection generally. The Board must link the general findings to the specifics of the claimant: Ullah, Safi v. M.C.I. (F.C., no. IMM-7814-04), Phelan, July 22, 2005; 2005 FC 1018. See also Sanchez Mestre, Adriana Lucia v. M.C.I. (F.C., no. IMM-7767-13), Brown, March 25, 2015; 2015 FC 375.

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Note 13

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.

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Note 14

Ward, supra, note 1, at 720-721.

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Note 15

See Ward, supra, note 1, at 722.

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Note 16

Ward, supra, note 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: “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’ (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, note 2.

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Note 17

Ward, supra, note 1, at 722.

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Note 18

Ward, supra, note 1, at 722.

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Note 19

Ward, supra, note 1, at 724-726.

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Note 20

Ward, supra, note 1, at 726.

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Note 21

Hinzman, Jeremy v. M.C.I. and Hughey, Brandon David v. M.C.I. (F.C.A, nos. A-182-06; A-185-06) . Décary, Sexton, Evans, April 30, 2007; 2007 FCA 171 (leave to appeal dismissed by the SCC on November 15, 2007, [2007] S.C.C.A. No. 321). See also chapter 9 for a full discussion of Hinzman.

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Note 22

Chaves, Alejandro Jose Martinez v. M.C.I. (F.C., no. IMM-603-04), Tremblay-Lamer, February 8, 2005; 2005 FC 193. See also Lopez Gonzalez, Jaqueline v. M.C.I. (F.C., no. IMM-5321-10), Rennie, May 24, 2011; 2011 FC 592, where the Court noted at para 12 that “[T]he case law shows that an applicant must include proof that they have exhausted all recourse available, except in exceptional circumstances where it would be unreasonable for them to do so, such as when the persecutor is an agent of the state, because of police corruption …. or where it would otherwise be futile.”

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Note 23

Badran, Housam v. M.C.I. (F.C.T.D., no. IMM-2472-95), McKeown, March 29, 1996, at 3-4.

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Note 24

M.C.I. v. Flores Carrillo, Maria del Rosario (F.C.A., no. A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008; 2008 FCA 94.

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Note 25

Explained by the Court as being “reliable and probative”.

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Note 26

Segura Cortes, Tania Elisa v. M.C.I. (F.C., no. IMM-951-06), von Finckenstein, December 12, 2006; 2006 FC 1487. . See also Rodrigues Bexiga, Ana Emilia Zoega v. M.C.I. (F.C., no. IMM-3449-10), O’Keefe, June 13, 2011; 2011 FC 676, where the Court noted at para 30 that [T]he onus is on the refugee claimant to rebut the presumption of state protection, not on the Board to provide evidence of adequate state protection.”

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Note 27

Malveda, Dennis v. M.C.I. (F.C., no. IMM-6519-06), Russell, April 4, 2008; 2008 FC 447. . See also M.C.I. v. Bari, Tibor (F.C., no. IMM-2634-14), Brown, May 21, 2015; 2015 FC 656, in which the Court analyzed the adequacy of reasons on state protection. Citing Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, it indicated that reasons must allow the reviewing court to understand why the Board made its decision and permit it to determine whether the conclusion is reasonable.

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Note 28

Ward, supra, note 1, at 724.

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Note 29

Ward, supra, note 1, at 724. In Aurelien, Eyon v. M.C.I. (F.C., no. IMM-10661-12), Rennie, June 26, 2013; 2013 FC 707, the Court explained that it is an error to place a legal burden of seeking state protection on a refugee claimant. It is an evidentiary burden which, if met, displaces a legal presumption. An applicant need not seek state protection if the evidence indicates it would not reasonably have been forthcoming. On this point, see also Nel, Charl Willem v. M.C.I. (F.C., no. IMM-4601-13), O’Keefe, September 4, 2014; 2014 FC 842. In Sanchez Mestre, supra, note 12, the Court noted that where the evidence establishes that a request for state protection would be futile, the claimant does not have to make the request just to prove the point. In Galogaza, Ljubisa v. M.C.I. (F.C., no. IMM-3078-13), O'Reilly, March 31, 2015; 2015 FC 407, where the claimant feared openly discussing his sexual orientation because it could have led to further persecution, not protection, the Court noted that there is no absolute requirement to approach the state for protection as the refugee definition includes those who are unwilling, out of fear of persecution, to avail themselves of state protection.

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Note 30

Marinaj v. Canada (Citizenship and Immigration), 2020 FC 548.

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Note 31

In Marinaj v. Canada (Citizenship and Immigration), 2020 FC 548, at para 65, the Court found that “…a claimant’s failure to approach his or her home state for protection will defeat the claim only if it was objectively unreasonable for the claimant not to have sought such protection (Ward at 724). This is because “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” (ibid). The member does not note this important qualification in Ward. Contrary to what the RAD member states, unsuccessfully seeking the protection of one’s country of nationality is not a precondition for refugee protection.”

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Note 32

Peralta, Gloria Del Carmen v. M.C.I. (F.C.T.D., no. IMM-5451-01), Heneghan, September 20, 2002; 2002 FCT 989. See also Sanchez, Leonardo Gonzalez v. M.C.I. (F.C., no. IMM-3154-03), Mactavish, May 18, 2004; 2004 FC 731 and the discussion under section 6.1.8. and the discussion under section 6.1.8. In Garcia Aldana, Paco Jesus v. M.C.I. (F.C., no. IMM-2113-06), Hughes, April 19, 2007; 2007 FC 423, v. M.C.I. (F.C. no. IMM-2113-06), Hughes, April 19, 2007; 2007 FC 423, the Court noted that the Board must assess the steps actually taken by the claimant in the context of country conditions and consider the interaction that the claimant did have with the police authorities; and in Prieto Velasco, Augosto Pedro v. M.C.I. (F.C., no. IMM-3900-06), Shore, February 8, 2007; 2007 FC 133, the Court noted that the RPD failed to consider the fact that the claimants’ situation worsened after they filed a complaint with the police. The same point was made in Aguilar Soto, Rafael Alberto v. M.C.I. (F.C., no. IMM-1883-10), Shore, November 25, 2010; 2010 FC 1183. In Moreno Maniero, Ronald Antonio v. M.C.I. (F.C., no. IMM-8536-11), Zinn, June 19, 2012; 2012 FC 776, the Court held that the RPD erred in holding that the applicant must exhaust every possible avenue of state protection – the test is that all “reasonable” efforts must be made.

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Note 33

In Lakatos, Brigitta v. M.C.I. (F.C. no. IMM-3939-17), Diner, April 5, 2018; 2018 FC 367, the Court found that the PRRA officer erred when he did not analyze whether the applicant’s efforts to test state protection met the evidentiary burden in her circumstances, including the credible evidence that she had, in the past, sustained injuries in attacks and that the Hungarian police had treated her harshly. In Kauhonina, Claretha v. M.C.I. (F.C. no. IMM-2459-18), Diner, December 21, 2018; 2018 FC 1300 the Court found the RPD erred when it concluded that the claimant had failed to take adequate steps to seek state protection. The Board needed to address the fact that the claimant had previously reported being beaten to the police but that she was sent away because it was a domestic matter and then was subsequently beaten by the same man. Similarly, in Sandoval, Dulce Dennise Gomez v. M.C.I. (F.C. no. IMM-349-18), Walker, November 5, 2018; 2018 FC 1110 the Court quashed a PRRA decision because the officer failed to assess the applicant’s profile as an individual whose ex-husband has ties to a drug cartel in Mexico.

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Note 34

In Moreira Chavez, Reina De La Paz v. M.C.I. (F.C. no. IMM-80-18), Southcott, July 6, 2018; 2018 FC 705 the Court upheld an RPD decision in which it had accepted the claim and found the claimant had rebutted the presumption of state protection despite the fact she had not approached the state for help. The RPD relied upon the country conditions evidence only. The Court stated at para 29: “I agree with the logic of the submission by the Respondent’s counsel at the hearing of this application, to the effect that, in the particular circumstances of this case, there would have been very limited probative value in efforts made by the Respondent to seek police protection before leaving El Salvador, as that would have been at least 15 years ago. Such efforts would therefore have provided little insight into the availability of state protection under the circumstances that now exist 15 years later.”

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Note 35

James, Sherica Sherilon v. M.C.I. (F.C., no. IMM-5039-09), Mainville, May 18, 2010; 2010 FC 546. In D.C.L. v. M.C.I. (F.C., no. IMM-3542-05), von Finckenstein, March 27, 2006; 2006 FC 384, the claimant was a minor when she was sexually abused by her stepfather. The Court noted that her failure to seek state protection must be assessed in light of her status as a minor at the time. In Ayala Nunez, Luisa Fernanda v. M.C.I. (F.C., no. IMM-4500-11), Rennie, February 23, 2012; 2012 FC 255, the Court noted that the RPD had not expected the minor herself to seek state protection but that it was reasonable to expect that her family would do so. In Sanchez Cruz, Flora Leydi v. M.C.I. (F.C., no. IMM-6527-11), Scott, May 30, 2012; 2012 FC 664, the Court found that the RPD had erred when it determined that state protection was available to the minor applicants. The RPD should have conducted a separate analysis of the children’s situation. The evidence adduced with respect to the situation of each individual child should have triggered separate analyses of the risk and the ability of the Mexican state to protect these children and whether they could reasonably access such protection taking into consideration each child’s individual circumstances.

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Note 36

Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A.).

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Note 37

Zalzali, supra, note 36, at 615. Applied in Sami, Sami Qowdon v. M.E.I. (F.C.T.D., no. A-629-92), 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 in North Somalia).

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Note 38

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.). See also Isufi, Arlind v. M.C.I. (F.C., no. IMM-5631-02), Tremblay-Lamer, July 15, 2003; 2003 FC 880, where the Court considered the situation of a claimant from Kosovo and had this to say: “In the case at bar, there is no difference in interest between the UN forces and the government of the Federal Republic of Yugoslavia. As such, the Board did not commit an error in determining that state protection was available to the applicant through non-state actors. ... The presence of UN forces is not evidence of a breakdown of the state apparatus in Yugoslavia or Kosovo. The UN forces and security police in Kosovo work in conjunction with the local Kosovo police service to maintain order.”.”

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Note 39

Choker, Ali v. S.G.C. (F.C.T.D., no. A-1345-92), Dubé, July 30, 1993. See also section 6.1.8. of this Chapter, Source of Protection.

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Note 40

Salamanca, Miguel Angel Sandoval v. M.C.I. (F.C., no. IMM-6737-11), Zinn, June 19, 2012; 2012 FC 780. Note that while the Court in Salamanca uses the phrase “far more likely than not” (in para 17), a number of subsequent cases have referred to the phrase but have omitted the word “far”. For example, see Bakos, Robert v. M.C.I. (F.C., no. IMM-2424-15), Manson, February 12, 2016 (amended September 7, 2016); 2016 FC 191, which says that Salamanca suggests that adequate state protection means that it is more likely than not that the applicant will be protected (see paragraph 30).

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Note 41

But see Newland v. Canada (Citizenship and Immigration), 2019 FC 1418, wherethe Court upheld a PRRA officer's conclusion that there would be adequate protection for the claimant, a police informant in Jamaica, despite evidence in the form of a letter by the Jamaican constabulary describing the difficulty they would have protecting him and supporting his claim for asylum in Canada. The Court concluded that the stated difficulties in protecting the claimant were not an admission by the state that adequate protection would not be provided. At para 34, the Court contrasts the claimant's situation with that of the female claimant in Henry v. Canada (Citizenship and Immigration), 2007 FC 512, where the Court had found the RPD's decision unreasonable in failing to provide analysis of a letter from the police in Grenada implying that they were unable to protect her.

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Note 42

In Ayisi-Nyarko, Isaac v. M.C.I. (F.C., no. IMM-3671-03), O’Reilly, December 10, 2003; 2003 FC 1425, the claimant thought that making a police report would probably be ineffective because suspects were often released on bail and then would exact reprisals against their accusers. This evidence, however, was not sufficient to displace the presumption that states are willing and able to protect their citizens (Ward). As noted earlier, the Federal Court of Appeal in Flores Carrillo, clarified that the evidentiary burden of producing “clear and convincing evidence” is merely that, an evidentiary burden, on a balance of probabilities, to rebut the presumption of state protection. However, in A.B. v. M.C.I. (F.C., no. IMM-2803-17), Grammond, March 2, 2018; 2018 FC 237 the Court cautioned against placing too strict a requirement on producing evidence of precise police shortcomings in an individual case, as such evidence may be difficult to obtain. In this case, the police conducted an investigation into the claimant’s complaints, but the file was eventually closed. The Court held this fit a pattern of lack of effective protection of victims of domestic violence which was reflected in the documentary evidence. Likewise, in Zatreanu, Ion v, M.C.I. (F.C. no. IMM-4059-17), Elliott, March 18, 2019; 2019 FC 332, the evidence indicated that the police showed up and took notes when complaints were made, but nothing happened. The Court held at para 52 that that the RAD did not turn its mind to whether or not the kind of investigation that was carried out by the police in response to the many complaints actually was protection or whether such evidence rebutted the presumption of state protection.

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Note 43

Zalzali, supra, note 36, at 614, Ward, supra, footnote 1, at 725.

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Note 44

Ward, supra, note 1, at 725. For a case where the RPD did not have proper regard for evidence of similarly situated individuals, see Campodonico Palma, Carlo Alfredo v. M.C.I. (F.C., no. IMM-6195-14), O’Keefe, September 8, 2015; 2015 FC 1056.

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Note 45

Ward, supra, note 1, at 725.

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Note 46

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.).

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Note 47

Ward, supra, note 1, at 725 (quoting from Satiacum, at 176).

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Note 48

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). In Diaz De Leon, Andromeda v. M.C.I. (F.C., no. IMM-6429-06), Frenette, December 12, 2007; 2007 FC 1307, the Court noted that in the case of a developing democracy (in this case Mexico), where corruption and drug trafficking are prevalent, the presumption of state protection can be more easily overcome, particularly if, as in this case, those whose job was to protect could not protect themselves. In Rodriguez Capitaine, Rogelio v. M.C.I. (F.C., no. IMM-3449-07), Gauthier, January 24, 2008; 2008 FC 98, the Court, in paras 20-22, discusses the notion of “democracy spectrum” raised in Hinzman, supra, note 21. It appears to apply not only to exhausting recourses, but also to determining the extent of the evidence needed to displace the presumption and whether it would be unreasonable not to seek protection.

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Note 49

Alassouli, Yousf v. M.C.I. (F.C., no. IMM-6451-10), de Montigny, August 16, 2011; 2011 FC 998. See also Ahmed, Ahmed Ibrahim v. M.C.I. (F.C. no. IMM-2187-18), Kane, November 16, 2018; 2018 FC 1157, at para 52 where, in the context of a claim against Iraq, the Court stated that “the RAD’s conclusions do not reflect the principle that democracy alone may not be an indicator of state protection, nor do they sufficiently account for the Applicant’s particular circumstances.”

Return to note 49 referrer

Note 50

Varga v. Canada (Citizenship and Immigration), 2020 FC 102.

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Note 51

Varga v. Canada (Citizenship and Immigration), 2020 FC 102, at paras 104-106.

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Note 52

Shaka, Abdul Shema v. M.C.I. (F.C., no. IMM-4141-11), Rennie, February 21, 2012; 2012 FC 235. Some cases appear to treat the presumption as being different depending on the level of democracy; however, the presumption as set out by the SCC in Ward was a presumption that applied to all countries. What was recognized was that the presumption could be rebutted differently depending on the level of democracy in the state in question. Cases such as Sow, Harouna Sibo v. M.C.I., no. IMM-5287-10, Rennie, June 6, 2011; 2011 FC 646, and Masalov, Sergey v. M.C.I. (F.C., no. IMM-7207-13), Diner, February 4, 2015; 2015 FC 277, which refer to the notion that the presumption varies with the nature of democracy in a country should be read with caution in this regard.

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Note 53

Hinzman, supra, note 21 .

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Note 54

Katwaru, Shivanand Kumar v. M.C.I. (F.C., no. IMM-3368-06), Teitelbaum, June 8, 2007; 2007 FC 612. The Court found that the documentary evidence in the case did not support the Board’s conclusion that “there is an effective security force in place [in Guyana] and that police deficiencies, although existing, are not generalized.”

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Note 55

While the Court refers to “effective protection”, which in later cases has been questioned as the correct standard to apply, (see Section 6.1.7.3.2.of this Chapter) the point of the case is that the documentary evidence must support the findings that state protection is available.

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Note 56

Loaiza Brenes, Heyleen v. M.C.I. (F.C., no. IMM-2445-06), Barnes, April 2, 2007; 2007 FC 351.

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Note 57

Leon Davila, Marco Antonio v. M.C.I. (F.C., no. IMM-7645-05), de Montigny, December 11, 2006; 2006 FC 1475. See also Campos, Arnoldo Alfredo v. M.C.I. (F.C., no. IMM-7839-12), Manson, August 19, 2013; 2013 FC 882, where the Court noted that “what is reasonable depends on an applicant’s individualized context.”

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Note 58

Mudrak, Zsolt Jozsef v. M.C.I. (F.C.A., no. A-147-15), Stratas, Webb, Scott, June 14, 2016; 2016 FCA 178.

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Note 59

Mudrak, supra, ibid., at para 31.

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Note 60

Hercegi, Jozsef v. M.C.I. (F.C., no. IMM-4225-11), Hughes, February 22, 2012; 2012 FC 250.

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Note 61

Majlat, Robert Attila v. M.C.I. (F.C., no. IMM-1886-13), Gleason, October 10, 2014; 2014 FC 965.

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Note 62

Orgona, Tiborne v. M.C.I. (F.C. no., IMM-2267-12), Zinn, December 7, 2012; 2012 FC 1438; De Araujo Garcia, Debora v. M.C.I (F.C., no. IMM-5987-05), Campbell, January 24, 2007; 2007 FC 79; Bors, Karolyne v. M.C.I. (F.C. no., IMM-1899-10, Shore, October 12, 2010; 2010 FC 1004; Kovacs, Gabor v. M.C.I. (F.C., no. IMM-1897-10, Shore, October 12, 2010; 2010 FC 1003.

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Note 63

Zalzali, supra, note 36 at 614. M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Hugessen, Marceau, Décary, December 18, 1992.

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Note 64

Villafranca ibid.,. In Lopez Gonzalez, Jaqueline v. M.C.I. (F.C., no. IMM-5321-10), Rennie, May 24, 2011; 2011 FC 592, the Court noted that the “test of police protection is… adequacy; Carillo [sic] at para 32. The test is not that of successful arrest, detention and conviction… A failure of state protection cannot be founded, therefore, on a failure to bring a perpetrator to justice.” Much the same point was made in Salvagno, Sergio Santiago Raymond v. M.C.I. (F.C., no. IMM-5848-10), Pinard, May 26, 2011; 2011 FC 595. In two earlier cases involving Costa Rica, the Court followed Villafranca and noted that the absence of a witness protection program did not render the Board’s decision on protection unreasonable, and that a duty to provide personal protection to every person who files a police complaint is unreasonable by the standards of any country: Alfaro, Oscar Luis Alfaro v. M.C.I. (F.C., no. IMM-6905-03), O’Keefe, January 20, 2005; 2005 FC 92 and Arias Aguilar, Jennifer v. M.C.I. (F.C., no. IMM-1000-05), Rouleau, November 9, 2005; 2005 FC 1519.).

Also, the Federal Court stated in Gomez Gonzalez, Veronica v. M.C.I. (F.C., no. IMM-485-11), de Montigny, October 4, 2011; 2011 FC 1132: “As stated by this Court on a number of occasions, it is difficult to criticize the state authorities for their failure to act when the Applicants do not give them a reasonable opportunity to protect them.” In other words, the authorities should be given the information that is necessary in order to react adequately.

In Boston, Edwin v. M.C.I. (F.C., no. IMM-6554-06), Snider, December 4, 2007; 2007 FC 1271, the Court noted that Villafranca is not inconsistent with Ward . The Court noted that “[a]bsent evidence to the contrary, a state that can provide adequate protection to all of its citizens who may be subject to persecution by the NPA [guerilla group operating in the Philippines], can also reasonably be found to be able to protect an individual who has suffered at the hands of the same organization. Thus, the Board did not err by focusing its examination on the level of protection vis-à-vis the NPA available for all citizens in the Philippines.”

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Note 65

In Jaworowska v. Canada (Citizenship and Immigration), 2019 FC 626, at para 45, the Court described the fact-specific nature of analyzing the adequacy of state protection in the following terms: “The adequacy of state protection is in each case highly fact dependent. Almost inevitably, the adequacy of protection in a country is linked to the circumstances of the particular claimant(s) before a decision-maker and their ability to access state resources. Generally, a finding that adequate state protection is not available to a claimant in one case is not determinative of the adequacy of that protection to other claimants who belong to the same group or segment of a country's population. The analysis of state protection is too complex to give rise to a single answer of general application. A decision-maker is required to begin its analysis with an assessment of the nature of the state in question and its security and judicial processes; to then assess the operational effectiveness of those processes in the context of an identified group to which the claimants belong; and to analyse the ability and actions of the particular claimants in accessing the available state protection.”

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Note 66

See for example, Boakye, Kofi v. M.C.I. (F.C., no. IMM-2361-15), Strickland, December 18, 2015; 2015 FC 1394; Hasa, Ana v. M.C.I. (F.C., no. IMM-3700-17), Strickland, March 7, 2018; 2018 FC 270. More recently, in Giraldo v. Canada (Citizenship and Immigration), 2020 FC 1052, the Federal Court upheld the RPD's decision even though the terms “adequacy” and “effectiveness” were not used in its state protection analysis and where the term “efforts” was employed on two separate occasions. The Court concluded that the RPD had applied the correct legal test for state protection, stating: “Although it did not mention the words “effectiveness” or “adequacy,” it is clear that the RPD understood and applied the proper legal test. The RPD did not limit its analysis to an examination of declarations of best efforts made by the state to provide protection: the RPD assessed the numerous protection measures the Applicants actually received.” (at para 17).

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Note 67

Burai v. Canada (Citizenship and Immigration), 2020 FC 966.

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Note 68

Burai v. Canada (Citizenship and Immigration), 2020 FC 966, at para 25.

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Note 69

Gonzalez Camargo, Hernando v. M.C.I. (F.C., no. IMM-38-14), Gleeson, September 2, 2015; 2015 FC 1044.

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Note 70

Moran Gudiel, Hugo v. M.C.I. (F.C., no. IMM-2054-14), Gascon, July 23, 2015; 2015 FC 902.

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Note 71

See for example Zepeda v. Canada (Minister of Citizenship and Immigration), 2008 FC 491, at paras 24-25; and Lakatos v. Canada (Citizenship and Immigration), 2019 FC 864, at para 68.

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Note 72

Zepeda v. Canada (Minister of Citizenship and Immigration), 2008 FC 491. In concurring with this case, Justice Zinn in Corneau, Marie Madeleine v. M.C.I. (F.C., no. IMM-6120-10), Zinn, June 20, 2011; 2011 FC 722, put it thus: “… While shelters, counseling services, and hotlines may be helpful to women escaping abuse, these institutions are not tasked with ensuring physical safety – this is the job of the police. In most cases, if a claimant establishes that the police force or analogous authority is unable to protect him or her from threats identified in ss. 96 or 97 of the Immigration and Refugee Protection Act, SC 2001, c 27, he or she will have rebutted the presumption of state protection.”

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Note 73

In Barajas, Leonardo Macias v. M.C.I. (F.C., no. IMM-2393-09), Russell, January 7, 2010; 2010 FC 21, the Court summarized the evidence as follows: “... the [Mexican] police force was not only unwilling to protect the Applicant, it was also the perpetrator of the threat, and that threat was immediate and deadly. It was not just that the police refused to accept his report or to help him; the police threatened to arrest him and put him in jail... Under such circumstances, I think it was entirely unreasonable for the Board to expect that the Applicant could have countered such a threat by going to alternative institutions that deal with corrupt police and other state officials.”

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Note 74

Bari, Viktor Karoly v. M.C.I. (F.C., no. IMM-1735-13), de Montigny, September 11, 2014; 2014 FC 862.

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Note 75

Katinszki, Piroska v. M.C.I. (F.C., no. IMM-2520-12), de Montigny, November 15, 2012; 2012 FC 1326, the Court stated:

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Note 76

Ahmed, supra, not 49 at para 67.

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Note 77

Graff, Krisztian Istva v. M.C.I. (F.C., no. IMM-6504-13), Zinn, April 10, 2015; 2015 FC 437. See also Csoka, Attila v. M.C.I. (F.C. no., IMM-1244-16, Gascon, November 2, 2016; 2016 FC 1220, where the Court noted that “[a]lternate institutions concerned with police corruption or abuse do not constitute substitutes or avenues able to replace the police protection itself.”

Return to note 77 referrer

Note 78

Orsos, Erzsebet v. M.C.I. (F.C., no. IMM-5888-13), Rennie, February 26, 2015; 2015 FC 248. See also Risak, Boris v. M.E.I. (F.C.T.D., no. IMM-6087-93), Dubé, October 24, 1994.

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Note 79

Flores Carrillo v. Canada (Minister of Citizenship and Immigration), (F.C.A. no., A-225-07), Létourneau,Nadon, Sharlow, March 12, 2008; 2008 FCA 94, at para. 34. This reasoning was followed in Hernandez Gonzalez, Karla Del Carmen v. M.C.I. (F.C., no. IMM-2265-08), Hughes, November 13, 2008; 2008 FC 1259, and Ramirez Albor, David v. M.C.I. (F.C., no. IMM-2359-09), Boivin, December 1, 2009; 2009 FC 1231, where the Court added this caveat:

[19] I agree that alternate organisations or institutions put in place in order to overcome corruption issues in a given state must be more than an empty shell lacking the effective means to achieve their purposes and protect persons such as the Applicants. Such organisations or institutions must reflect a genuine alternative and translate into more than good intentions on the part of the government. A mere expression of an intention on the part of a state to address a corruption problem with no evidence of a follow-through will generally be insufficient.

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Note 80

Mudrak, supra, note 58.

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Note 81

Saavedra Sanchez, Perla v. M.C.I. (F.C., no. IMM-1604-07), Barnes, February 5, 2008; 2008 FC 134. See also Sanchez Gutierrez, Alejandro v. M.C.I. (F.C., no. IMM-237-08), Mactavish, August 26, 2008; 2008 FC 971; and Hall, Zita v. M.C.I. (F.C., no. IMM-3705-10), Rennie, March 4, 2011; 2011 FC 26. In Lopez Gonzalez, Jaqueline v. M.C.I. (F.C., no. IMM-5321-10), Rennie, May 24, 2011; 2011 FC 592, the Court noted that while the existence or non-existence of governmental and non-governmental agencies that might facilitate access to state protection or shelter to victims of domestic violence formed part of the contextual assessment of the ability of the state to protect its citizens, in this particular case, what was critical to the finding of state protection was the fact that the police responded to the assault when it was reported.

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Note 82

Ruszo, Zsolt v. M.C.I (F.C. no., IMM-5386-12), Crampton, October 1, 2013; 2013 FC 1004.

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Note 83

Glonczi v. Canada (Citizenship and Immigration), 2019 FC 931.

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Note 84

Mudrak v. Canada (Citizenship and Immigration), 2015 FC 188.

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Note 85

Balogh v. Canada (Citizenship and Immigration), 2015 FC 76.

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Note 86

Karoly, Szalo v. M.C.I. (F.C., no. IMM-1566-04), Blais, March 24, 2005; 2005 FC 412. See also Carrera Mendez, Luz Maria Sonia v. M.C.I. (F.C., no. IMM-1806-08), Pinard, December 22, 2008; 2008 FC 1385; Baku, Ervin v. M.C.I. (F.C., no. IMM-1090-10), Pinard, November 25, 2010; 2010 FC 1163; and Darcy, Enola Feria v. M.C.I. (F.C., no. IMM-7203-10), Pinard, December 13, 2011; 2011 FC 1414, where the Court quoted from Baku and held that “state protection may be expected to be sought from sources other than the police, such as state-run agencies.”

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Note 87

Aurelien, Eyon v. M.C.I. (F.C., no. IMM-10661-12), Rennie, June 26, 2013; 2013 FC 707. This case was followed in Davidova, Dana v. M.C.I. (F.C., no. IMM-6542-12), Noël, September 5, 2013; 2013 FC 908, where the Court noted that “… there is extensive case law supporting the proposition that non-state actors, which include NGOs, may not replace the protection that should primarily be provided by the state.” In Corneau, supra, note 72, the Court held that a claimant is not required to seek protection or assistance from non-governmental organizations or administrative agencies in order to rebut the presumption of state protection.

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Note 88

Note 25 of the Guideline states the following: "It is clear that the claimant's failure to seek protection from non-government groups can have no impact on the assessment of the availability of state protection. In certain circumstances, however, the fact that the claimant did not approach existing non-government organizations in her country of origin may have an impact on her credibility or, more generally, on the well foundedness of her claim."

A case that discusses this section of the Guideline is De Araujo Garcia, Debora v. M.E.I., (F.C. no., IMM-5987-05), Campbell, January 24, 2007, 2007 FC 79. In Salamon, Gyorgyne v. M.C.I. (F.C., no. IMM-6773-12), Rennie, May 30, 2013; 2013 FC 582, the Court held that: “[10] The Board considered it reasonable to expect the applicant to approach additional agencies and community organizations and activists. In the case of sexual assault and other serious crimes of physical violence, state protection is measured by the response of the police, not by secondary agencies such as complaints bodies or organizations which help victims cope with the consequences of the crime. The two are not to be conflated.” See also Csoke, Anita Fustosne v. M.C.I. (F.C., no. IMM-5957-14), Fothergill, October 15, 2015; 2015 FC 1169, where the Court referred to the Guideline and noted that it is an error for the RPD to cite the availability of services offered by non-governmental organizations in support of a finding of adequate state protection.

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Note 89

Naumets, Nina v. M.C.I. (F.C., no. IMM-2071-07), Mosley, April 22, 2008, 2008 FC 522.

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Note 90

Balogh, supra, note 85, at para 39. As the Court noted, “[i]n conclusion, in reviewing the alternative avenues of state protection available to the Applicant, the Officer fails to answer the same question as stated by Justice Zinn in Majoros [Majoros, Lajos v. M.C.I. (F.C. no., IMM-7541-12, Zinn, April 24, 2013; 2013 FC 421]: “[H]ow would state protection be more forthcoming if the applicants had followed up with, e.g., the Minorities Ombudsman’s Office? Would they be any safer or any more protected?” The Officer lists a number of agencies in Hungary and concludes that they will provide state protection for the Applicant but fails to actually address how these agencies will protect the Applicant.” See also Graff, supra, note 77.

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Note 91

El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994.

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Note 92

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. See also Pachkov, Stanislav v. M.C.I. (F.C.T.D., no. IMM-2340-98), Teitelbaum, January 8, 1999; and 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, 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.).

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Note 93

Nizar v. M.C.I. (F.C.T.D., no. A-1-92), Reed, January 10, 1996, at 5.

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Note 94

Thabet, supra, note 92.

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Note 95

See Chapter 2, section 2.2.2.

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Note 96

Popov, Alexander v. M.C.I. (F.C. no., IMM-841-09, Beaudry, September 10, 2009; 2009 FC 898.

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Note 97

Khattr, Amani Khzaee v. M.C.I. (F.C. no., IMM-3249-15), Zinn, March 22, 2016; 2016 FC 341.

Return to note 97 referrer

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