Date: 20101125
Docket: IMM-1090-10
Citation: 2010 FC 1163
Ottawa, Ontario, this 25th
day of November 2010
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Ervin
BAKU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review of the decision of Immigration and
Refugee Board – Refugee Protection Division Member Paule Robitaille (the
“Board”), pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, by Ervin Baku (the “applicant”),
rejecting the applicant’s claim for refugee status.
[2]
The
Board determined
that the applicant had failed to show that there was inadequate state
protection in his home country of France, and therefore had not satisfied the
requirements necessary to be a Convention refugee or a person in need of
protection.
[3]
The applicant
is a 40-year-old journalist who is a dual citizen of Albania and France. He obtained his French
citizenship by applying for refugee status in that country.
[4]
On
June 8, 2007, Muslim Forum of Albania, a daily newspaper, sent out a
press release in which the applicant was accused of Islamophobia and, on June
17, 2007, ran an editorial which singled out the applicant as an enemy of
Islam. Subsequent to this, the applicant received ongoing death threats.
[5]
The applicant
claims that on August 2, 2008, he was kidnapped by two men outside of his home.
He was pulled into a car and told, in Albanian, that he should cease speaking
out against Islam. The kidnappers then made threats towards the applicant’s
children, beat him, and threw him out of the car in front of his home.
[6]
The
next day, the applicant went to the police in Strasbourg, but claims that his story was not taken
seriously and he was told to return the following week. He then fled to his
brother’s house in Germany before deciding to
leave for Canada. He arrived in this
country on August 15, 2008 and made a claim for refugee status on August 19,
2008.
* * * * * * * *
[7]
Credibility
was not an issue in the hearing before the Board. Instead, the latter found
that the applicant had not adequately refuted the presumption of state
protection.
[8]
The
applicant raises only one issue in this judicial review: Did the Board err in its
state protection analysis?
[9]
The
question of adequacy of state protection is one of fact and should be reviewed
on a standard of reasonableness (Jabbour et al. v. The Minister of
Citizenship and Immigration, 2009 FC 831, at paragraph 18).
[10]
The applicant
states that failure to take all steps to seek protection is not fatal to a
claim unless a panel also determines that protection would have been reasonably
forthcoming. The presumption of state protection, he contends, was refuted by
the evidence of the experiences of individuals in situations similar to his.
[11]
The applicant
makes a further claim that the Board failed to examine the “unique
characteristics” of power and influence of the alleged agent of harm, and the
willingness of the state to protect. The Board was obliged to examine the
motivation of the persecuting agent and its ability to pursue the applicant
locally or throughout the country.
[12]
It
is the responsibility of the applicant to refute the presumption of state
protection on a balance of probabilities using clear and convincing evidence (see
Samuel v. Minister of Citizenship and Immigration, 2008 FC 762, at paragraph
10). The more democratic a state, the higher the burden on the applicant to
show both that the avenues for state protection were exhausted, and that state
protection would not be reasonably forthcoming (Hinzman et al. v. Minister
of Citizenship and Immigration, 2007 FCA 171, 282 D.L.R. (4th) 413,
at paragraph 57).
[13]
It
is well established that local failures to provide adequate policing do not
amount to a lack of state protection (see Flores Carrillo v. Canada (Minister
of Citizenship and Immigration), [2008] 4 F.C.R. 636 (C.A.); Rocque et al. v. Minister
of Citizenship and Immigration, 2010 FC 802). In addition, state protection
may be expected to be sought from sources other than the police, such as state-run
agencies (Nagy v. Minister of Citizenship and Immigration, 2002 FCT
281). An applicant will only be exempted from the obligation to exhaust the
available avenues of state protection when it would have been objectively
unreasonable for him to do so (Hinzman, above, at paragraph 56).
[14]
The applicant
approached one police officer in Strasbourg on one occasion, did not follow up when told to
return the following week, and did not attempt to approach any other police
officers or agencies in other areas of France. I agree with the respondent’s contention that
this single attempt cannot constitute an adequate search for state protection,
especially in a democratic state. Further, the evidence provided by the applicant
does not establish that making additional attempts to obtain state protection
would have been objectively unreasonable. Rather, the evidence that was before
the Board shows that France takes the threat of
radical religious groups and the protection of its citizens very seriously. The
applicant’s mere belief that the state is unable to protect him, without
sufficient supporting evidence, will not be enough to warrant a finding of
inadequate state protection (Judge v. Minister of Citizenship and
Immigration, 2004 FC 1089).
[15]
The applicant
seems to suggest that the evidence of similarly situated individuals in France (i.e. those
receiving death threats from Islamic groups) should be determinative of the
lack of state protection in that country. This cannot be the case; a member is
required to evaluate an applicant’s claim based on the specific situation of
that applicant, and the state’s ability to protect him or her given the
specific circumstances. While potentially enlightening, evidence of the
comparable circumstances of others cannot be the final word on the availability
or adequacy of state protection. In any event, this was a strange position for
the applicant to take, as the evidence he refers to shows that one of the individuals
was under police protection, and the other is still under police protection,
although it essentially requires him to live in hiding. If anything, this
indicates that state protection could reasonably be considered to be
forthcoming. It is trite law that state protection need not rise to the level
of perfection (Mendez et al. v. Minister of Citizenship and Immigration,
2008 FC 584), and just because the applicant does not think that the state has
proffered adequate protection does not make it objectively so.
[16]
The
Board properly took into account the relevant considerations for determining
whether the applicant had exhausted the available mechanisms of state
protection. Its finding that the applicant had not refuted the presumption of
state protection in France on a balance of
probabilities was a reasonable one.
* * * * * * * *
[17]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[18]
No
question is certified.
JUDGMENT
The application for judicial
review of the decision rendered on February 1, 2010 by the Refugee Protection
Division of the Immigration and Refugee Board rejecting the applicant’s claim
for refugee status is dismissed.
“Yvon
Pinard”
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