- Note 1
Canada (Attorney General) v. Ward,  2 S.C.R. 689, 103 D.L.R. (4th) 1, 20 Imm. L.R. (2d) 85.
Return to note 1 referrer
- 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.
Return to note 3 referrer
- 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.
Return to note 4 referrer
- 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
supra, footnote 1, at 709.
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- Note 7
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.
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- Note 8
supra, footnote 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.
Return to note 9 referrer
- 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:
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
supra, footnote 1, at 720-721.
Return to note 14 referrer
- Note 15
Ward, supra, footnote 1, at 722.
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- Note 16
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: “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, footnote 2.
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- Note 17
Ward, supra, footnote 1, at 722.
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- Note 18
Ward, supra, footnote 1, at 722.
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- Note 19
supra, footnote 1, at 724-726.
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- Note 20
Ward, supra, footnote 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,  S.C.C.A. No. 321). See also chapter 9 for a full discussion of
Return to note 21 referrer
- 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 paragraph 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 paragraph 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.
Return to note 27 referrer
- Note 28
Ward, supra, footnote 1, at 724.
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- Note 29
supra, footnote 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, footnote 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, Ljubisav. 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.
Return to note 29 referrer
- Note 30
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.
Return to note 30 referrer
- Note 31
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.
Return to note 31 referrer
- Note 32
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 paragraph 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.”
Return to note 32 referrer
- Note 33
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.
Return to note 33 referrer
- Note 34
Zalzali v. Canada (Minister of Employment and Immigration),  3 F.C. 605 (C.A.).
Return to note 34 referrer
- Note 35
supra, footnote 34, 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).
Return to note 35 referrer
- Note 36
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.”.”
Return to note 36 referrer
- Note 37
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.
Return to note 37 referrer
- Note 38
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 paragraph 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).
Return to note 38 referrer
- Note 39
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 paragraph 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.
Return to note 39 referrer
- Note 40
supra, footnote 34, at 614,
Ward, supra, footnote 1, at 725.
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- Note 41
Ward, supra, footnote 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.
Return to note 41 referrer
- Note 42
Ward, supra, footnote 1, at 725.
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- Note 43
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.).
Return to note 43 referrer
- Note 44
Ward, supra, footnote 1, at 725 (quoting from
Satiacum, at 176).
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- Note 45
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 paragraphs 20-22, discusses the notion of “democracy spectrum” raised in
Hinzman, supra, footnote 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.
Return to note 45 referrer
- Note 46
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 paragraph 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 46 referrer
- Note 47
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.
Return to note 47 referrer
- Note 48
Hinzman, supra, footnote 21 .
Return to note 48 referrer
- Note 49
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.”
Return to note 49 referrer
- Note 50
While the Court refers to “effective protection”, which in later cases has been questioned as the correct standard to apply, (see Section 126.96.36.199.2.of this Chapter) the point of the case is that the documentary evidence must support the findings that state protection is available.
Return to note 50 referrer
- Note 51
Loaiza Brenes, Heyleen v. M.C.I. (F.C., no. IMM-2445-06), Barnes, April 2, 2007; 2007 FC 351.
Return to note 51 referrer
- Note 52
Marco Antonio v. M.C.I. (F.C., no. IMM-7645-05), de Montigny, December 11, 2006; 2006 FC 1475. See also
Campos, Arnoldo Alfredov. 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.”
Return to note 52 referrer
- Note 53
Mudrak, Zsolt Jozsef v. M.C.I. (F.C.A., no. A-147-15), Stratas, Webb, Scott, June 14, 2016; 2016 FCA 178.
Return to note 53 referrer
- Note 54
Mudrak, supra, footnote 53, para 31.
Return to note 54 referrer
- Note 55
Hercegi, Jozsefv. M.C.I. (F.C., no. IMM-4225-11), Hughes, February 22, 2012; 2012 FC 250.
Return to note 55 referrer
- Note 56
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 57
Orgona, Tiborne v. M.C.I. (F.C. no., IMM-2267-12), Zinn, December 7, 2012; 2012 FC 1438;
De Araujo Garcia, Deborav. 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.
Return to note 57 referrer
- Note 58
supra, footnote 34 at 614.
M.E.I. v. Villafranca, Ignacio (F.C.A., no. A-69-90), Hugessen, Marceau, Décary, December 18, 1992.
Return to note 58 referrer
- Note 59
Villafranca, supra, footnote 58. 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 60
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. 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.
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- Note 61
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 62
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 63
Flores Zepeda, Rosario Adriana v. M.C.I. (F.C., no. IMM-3452-07), Tremblay-Lamer, April 16, 2008; 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 64
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 65
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 66
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 70
Ahmed, supra,footnote 46 at paragraph 67.
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- Note 71
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.”
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- Note 72
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 73
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, 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:
 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 74
supra, footnote 53.
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- Note 75
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 76
Ruszo, Zsolt v. M.C.I (F.C. no., IMM-5386-12), Crampton, October 1, 2013; 2013 FC 1004.
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- Note 77
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 78
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, footnote 63, 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 79
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: “ 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 80
Naumets, Nina v. M.C.I. (F.C., no. IMM-2071-07), Mosley, April 22, 2008, 2008 FC 522.
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- Note 81
Balogh, Timea Maria v. M.C.I. (F.C., no. IMM-4870-13), Russell, January 20, 2015; 2015 FC 76. 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, footnote 68.
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- Note 82
El Khatib, Naif v. M.C.I. (F.C.T.D., no. IMM-5182-93), McKeown, September 27, 1994.
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- Note 83
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, supra, footnote 80.
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- Note 84
Nizar v. M.C.I. (F.C.T.D., no. A-1-92), Reed, January 10, 1996, at 5.
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- Note 85
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),  4 F.C. 21 (C.A.).
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- Note 86
See Chapter 2, section 2.2.2.
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- Note 87
Popov, Alexander v. M.C.I. (F.C. no., IMM-841-09, Beaudry, September 10, 2009; 2009 FC 898.
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- Note 88
Khattr, Amani Khzaee v. M.C.I. (F.C. no., IMM-3249-15), Zinn, March 22, 2016; 2016 FC 341.
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