Date: 20070124
Docket: IMM-5987-05
Citation: 2007
FC 79
Vancouver, British Columbia, January 24, 2007
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
DEBORA
DE ARAUJO GARCIA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In the
present case, the Applicant is the survivor of extreme violence perpetrated by her
powerful step-father while living in Brazil,
and she fears the violence will continue if she is made to return to that
country. On this ground she claims protection. The Refugee Protection
Division of the Immigration and Refugee Board (RPD) accepted her evidence, but
did not grant protection on a finding that she failed to rebut the presumption
that the state of Brazil can protect her if she
returns.
[2]
Prior to
the hearing of the present Application, the Respondent agreed that the RPD’s
decision was rendered in reviewable error because two important factual
findings in the RPD’s decision are not supported by the evidence on the record,
and, as a result, without the Application going to hearing, requested the
Applicant to consent to her claim being sent back for re-determination. Counsel
for the Applicant refused to consent on the argument that the RPD erred in its
determination on the issue for state protection, and that this determination
must be scrutinized so that, on the inevitable re-determination, state
protection can be properly determined. I agree with this argument. Therefore,
given the admitted reviewable error, this matter will be sent back for re-determination,
but on directions.
[3]
On the
issue of state protection, the Applicant argues that, while the RPD is correct
in applying the Supreme Court of Canada’s decision in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 (Ward),
the decision under review is in reviewable error because the RPD fails to
correctly determine the effect of Ward on other precedents with respect
to the issue of state protection. I agree with this argument. The analysis
which leads to this conclusion has four components: the RPD’s findings of fact;
the RPD’s findings of law; my opinion on the correct state of the law; and findings
of reviewable error in the RPD’s decision. In addition, the issues of directions
on the re-determination and costs are addressed.
I. The facts found
by the RPD
[4]
In its
decision of September 1, 2005, prior to making findings on state protection
upon which the decision turns, the RPD states the Applicant’s evidence of the
violence she has suffered and her attempts to access state protection in Brazil. Since no negative
credibility finding is made, I find that the RPD accepted the Applicant’s
evidence as true, and, subject to correction on two points, the statement
constitutes facts upon which the claim for protection should be decided.
[5]
The
following are the factual findings the Officer made:
The claimant
testified that starting 2001, Silva regularly sexually harassed, beat and
attempted to rape her when he began to cohabit with the claimant’s mother when
they lived in Juiz de Fora in
Minas Gervais. In 2001, the claimant telephoned the police once and they came
to the house, but spoke only to Silva and not with the claimant. She testified
that because Silva is a retired colonel and a wealthy farmer, who was friendly
with the authorities, no further action was taken by the police. Allegedly,
the unwelcome sexual assaults continued, but the claimant never sought
protection again although Silva continued his harassment unabated for years,
until early 2004 when she moved to Sao Paulo, a distance of 600 km. from her former home. After several months,
in August 2004, Silva came to Sao Paulo and attempted to rape and assaulted the claimant, but she was able
to escape. The claimant reported this incident to the police in Sao Paulo and was given access to
psychological counselling and medical support, but despite years of alleged
abuse she never sought or required medical treatment. After this August
2004 incident, the claimant spoke to the police a second time in August, and
once in September. When the claimant reported to the designated Police Station
for the Defence of Women where they told her that they would check into Silva’s
background and take some action. This special station referred her to two
non-governmental organizations (NGO), “Pro Women” where they did a
psychological report and “Women’s United” where she received additional
psychological support. The last time that the claimant saw Silva was in
September 2004, when she came out of hiding from her friend’s house to visit
her apartment where he was waiting outside and he pounded on her door. The
incident was never reported because the claimant planned to travel abroad. She
travelled to Canada two months
after Silva followed her to Sao Paulo and after her first report to the authorities in that province. On
October 9, 2004, the claimant travelled to Canada where she claimed refugee protection after several weeks.
The claimant
testified that she was unable to obtain any documentation related to her police
reports in Sao Paulo, to the police, or the NGOs and she never sought medical attention.
(Emphasis added)
(Tribunal Decision, pp.2-3)
[6]
The facts
found by the RPD constitute evidence of a well-founded fear on both objective
and subjective grounds, but it is agreed that the findings emphasized by
underline in the quotation above are not supported by the evidence and,
therefore, should not be taken into consideration on the re-determination.
II. The RPD’s findings
of law
[7]
The RPD
denied the Applicant’s claim on the basis of the following statements:
The claimant has failed to
rebut with clear and convincing evidence the presumption that the
constitutional federal republic
of Brazil is
capable of providing protection for its citizens. There was no evidence provided
that the government of Brazil is in chaos or disarray and
unable to govern.
[…]
I find that her efforts to
avail herself of state protection falls far short of a diligent attempt prior
to seeking asylum abroad and does not rebut the presumption that the state can
protect its citizens (Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689 at 726). The claimant made no effort to approach higher authorities in Sao Paulo or to ascertain if the
investigation and failure to prosecute Silva was limited to a certain officer (Canada
(Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th)
532). The claimant provided no evidence that the government of Brazil is in disarray and unable to
govern and as perfect protection (Zalzali v. Canada (Minister of Employment
and Immigration), [1991] 3 F.C. 605 (F.C.A.) and protection for all
citizens at all times (Canada (Minister of Employment and
Immigration) v. Villafranca
(1992), 18 Imm. L.R. (2d) 130), is not the criteria for adequate protection.
(Tribunal Decision, pp.4-5)
III. The correct
state of the law on state protection
[8]
The focus
in this component is Ward and the following decisions of the Federal
Court of Appeal, as it then was, (Court of Appeal): Zalzali v. Canada
(Minister of Employment and Immigration, [1991] 3 F.C. 605 (Zalzali);
Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No. 1189 (Villafranca); and Kadenko
v. Canada (Solicitor General (1996), 143 D.L.R. (4th) 532 (Kadenko).
Each decision will be described, with some comment, in the order that they were
decided.
A. The decision
in Zalzali
[9]
Zalzali,
a decision
rendered prior to Ward, concerns a national of Lebanon who claimed refugee protection based on
a well-founded fear from militias in Lebanon
due to his political opinions. An important feature of the claim is the fact
that, at the time, the national government exercised control over no part of
the country. In the decision, writing on behalf of Justices Hugessen and MacGuigan,
Justice Décary states that the principal question for determination is whether
there can be persecution where there is no form of guilt, complicity or participation
by the state in question, and answers in the affirmative. In addition, Justice
Décary makes the following observations: a state’s inability to protect is
governed by objective criteria which can be verified independently of the fear
experienced (para.16); and insofar as it is established that meaningful
national protection is available to a claimant, a fear of persecution cannot be
said to exist (quoting Professor Hathaway with approval, para.17). The
following findings were are also made:
There are probably several reasons beyond a person's
control why he might be unable to claim the protection of a State, one of them
being, and this is obvious, the non-existence of a government to which that
person may resort. There are situations, and the case at bar is one of them, in
which the political and military circumstances in a country at a given time are
such that it is simply impossible to speak of a government with control of the
territory and able to provide effective protection. Just as a state of
civil war is no obstacle to an application for refugee status, [See Salibian v.
Canada (Minister of Employment and Immigration), [1990] 3 F.C. 250 (C.A.)] so
the non-existence of a government equally can be no obstacle (para.20);
[…]
In the case at bar the Refugee Division blamed the
appellant for not trying to obtain protection from the Lebanese army. The
evidence is that no established authority was able to provide the appellant
with the desired protection. In the circumstances, therefore, the appellant was
unable to avail himself of the protection of his country, and far from
disqualifying him, this, on the contrary enabled him to meet one of the
conditions imposed in the definition of a refugee (para.23).
[Emphasis added]
B. The decision
in Villafranca
[10]
Some six months
before the decision in Ward was rendered, the decision in Villafranca
was delivered. Villafranca concerns a policeman from the Philippines who, because he had been
marked for death by a communist terrorist group, fled his country in fear for
his life. On review of the Refugee Division’s decision granting refugee
protection, the decision was set aside for the reason that, in reaching its
decision, the Refugee Division failed to address the issue of state
protection. Writing on behalf of Justices Marceau and Décary, Justice Hugessen
made a number of observations; those that require comment are numbered in
square brackets for easy reference:
The burden of showing that one
is not able to avail oneself of the protection of one’s own state is not easily
satisfied. The test is an objective one and involves the claimant showing
either that he is physically prevented from seeking his government’s aid
(clearly not the case here) or that the government itself is in some way
prevented from giving it.
[1] 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.
[2] 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, however, the state is so weak, and its control over all or part
of its territory so tenuous as to make it a government in name only, as this
Court found in the case of Zalzali v. Canada (Minister of Employment and
Immigration) [[1991] 3 F.C. 605], a refugee may justly claim to be unable
to avail himself of its protection.
[3] Situations of civil
war, invasion or the total collapse of internal order will normally be required
to support a claim of inability.
[4] On the other hand, 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.
[Emphasis added]
[11]
In the
passages emphasized in the quotation above, there are two distinct components
to Justice Hugessen’s observations. The first component comprises two statements
of general principle (ie. [1] and [2]) which build on the decision in Zalzali:
first, a democratic state cannot guarantee the protection of all of its
citizens at all times; and, second, in order for a claimant to discharge the evidentiary
burden of establishing that his or her state is unable to provide effective
protection, it is just not enough to prove that the state has “not always been
effective”, that is, it has failed more than once to protect persons in the
claimant’s particular situation. The first statement is understandable without
knowing the context, and is an obvious fact of life. However, the second
statement requires cautious application. It can be fairly argued that the
statement might apply in some or most claims, but whether it applies in any
given claim depends upon an evaluation of the context in which that particular
claim arises. That is, whether one failure, a few failures, or a number of
failures, arising in a particular context is proven inability is a conclusion
for a decision-maker to draw on the evidence presented.
[12]
The second
component comprises two statements (ie. [3] and [4]) pertaining to state
protection in a claim dealing with fear of terrorism, and must be read in this
light. Terrorism, by its very nature, is a direct threat to a state’s
authority. Therefore, it is fair to assume that a state will act to preserve
itself, and its failure to meet all terrorist attempts to arrest its lawful
authority cannot be accepted as lack of acceptance of responsibility to do so,
or lack of ability to do so. It is within the context of a claim based on fear
of terrorism that the words in statement [3] have meaning. The use of the word
“normally” is an acknowledgement that state collapse is not needed in every case
of fear of terrorism to prove state inability; again, the context drives the
result.
[13]
With
respect to statement [4], the use of “serious efforts” in this sentence
is equated to a state’s “due diligence” efforts to provide practical state
protection. However, there is a sharp difference between due diligence in
developing policy and giving education on a certain issue, and putting the
policy or education into actual operation. This point has particular
importance to protection against violence against women if the sentence under
consideration is extended to contexts other than terrorism.
[14]
It cannot be said that a state is making “serious efforts” to
protect women, merely by making due diligence preparations to do so, such as
conducting commissions of inquiry into the reality of violence against women,
the creation of ombudspersons to take women’s complaints of police failure, or
gender equality education seminars for police officers. Such efforts are not
evidence of effective state protection which must be understood as the
current ability of a state to protect women (see Franklin v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 1508 at para.
21).
[15]
Further, women are not protected by non-governmental agencies
that advise or shelter women from the violence. Indeed, the Refugee Board’s Guidelines issued by
the Chairperson Pursuant to Section 65(3) of the Immigration Act: Women Refugee
Claimants Fearing Gender-Related Persecution (Gender Guidelines)
agrees:
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.
(Section C.2)
[Emphasis added]
Therefore,
“serious efforts” must be viewed at the operational level of the
protection services offered by the state. As stated in Elcock v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. 1438 at para.15:
Ability of a
state to protect must be seen to comprehend not only the existence of an
effective legislation and procedural framework but the capacity and the will
to effectively implement that framework.
[Emphasis
added]
[16]
For example, when a woman calls the police at 3:00 am to say that
her estranged husband is coming through the window, the question is, are the
police ready, willing, and able to make serious efforts to arrive in time to
protect her from being killed? While it is true that even the best trained,
educated, and properly motivated police force might not arrive in time, the
test for “serious efforts” will only be met where it is established that the
force’s capability and expertise is developed well enough to make a credible,
earnest attempt to do so, from both the perspective of the woman involved, and
the concerned community. The same test applies to the help that a woman might
be expected to receive at the complaint counter at a local police station.
That is, are the police capable of accepting and acting on her complaint in a
credible and earnest manner? Indeed, in my opinion, this is the test that
should not only be applied to a state’s “serious efforts” to protect women, but
should be accepted as the appropriate test with respect to all protection
contexts.
C. The decision
in Ward
[17]
The unanimous
decision in Ward comprises the Supreme Court of Canada’s seminal
statement on refugee protection law. In the decision, the Court sets out clear
criteria to be applied when a person claims protection from Canada. The critical paragraphs of Justice La Forest’s decision are quoted in the Appendix to
these reasons, from which the following instructive points can be stated:
1. The
evidentiary burden rests with a claimant to establish a well- founded
prospective fear of persecution, on both subjective and objective grounds, if
returned to his or her country of origin. It is presumed that, if his or her
state is unable to provide effective protection, the objective
element of the burden is discharged (paragraphs 45 and 52).
2. The state of
origin is presumed to be capable of protecting its citizens, and the claimant
bears the evidentiary burden of rebutting this presumption on the basis of some
clear and convincing evidence (paragraphs 50 and 52). For example, the
evidence can include descriptions of other similarly situated persons not
having received protection, and the claimant’s own testimony of having
attempted to access the state’s protection, but that protection did not
materialize (paragraphs 50 and 52).
3. When, on the
evidence, it is found to be objectively reasonable for a claimant to have
sought state protection, a claimant must have approached the state for
protection. However, when, on the evidence, it is found that it is
unreasonable to expect the claimant to approach the state, the claimant’s
failure to do so will not defeat his or her claim (paragraph 49).
D. The
impact of Ward on Villafranca
[18]
In my
opinion, Ward amends the decision in Villafranca in a
particularly important respect. Ward makes a clear statement on the
quantity and quality of the evidence which a claimant must produce to rebut the
presumption of state protection; that is, a claimant is only required to
provide some clear and convincing evidence. Therefore, in my opinion, the
statement in Villafranca that “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” cannot any longer be applied as a point of law.
Thus, evidence of the failure of state authorities to effectively
respond to requests from women for protection from violent sexual predators,
exclusive of all other evidence, can be found to constitute some clear and
convincing evidence that rebuts the presumption of state protection. Whether
this finding is made depends on the quality of the evidence produced in the
judgment of the decision-maker involved.
[19]
By leaving
open how a claimant can discharge the burden to rebut the presumption of state
protection by setting the test at “some clear and convincing evidence”, Ward
requires a contextual approach to be taken to evaluating each and every claim
for protection, without reliance on any generalized pre-conceptions. As noted
below in the analysis of Kadenko, the Supreme Court of Canada in R.
v. Lavallee, [1990] 1 S.C.R. 852 (Lavallee) has emphasized that
findings with respect to a person’s conduct must be made on the basis of an
understanding of what to expect of that person’s conduct in the context of his
or her situation. Therefore, in my opinion, in any claim, including one based
on fear of terrorism, the impact of Ward is that the statement in Villafranca
that “situations of civil war, invasion or the total collapse of internal order
will normally be required to support a claim of inability” cannot any
longer be applied as a point of law.
[20]
Therefore,
it might very well be that evidence of failures of state authorities to
effectively respond to requests from women for protection from violent sexual
predators will be found to constitute some clear and convincing evidence that
rebuts the presumption of state protection.
E. The decision
in Kadenko
[21]
The decision
in Kadenko deals with a claim of protection arising from evidence of
discrimination and intolerance in Israel
against Russian-speaking claimants. In setting aside the Refugee Division’s
decision rejecting the claim for protection, the reviewing judge certified the
following question for consideration by the Court of Appeal:
Where there has not been a
complete breakdown of the governmental apparatus and where a State has
political and judicial institutions capable of protecting its citizens, does
the refusal by certain police officers to take action suffice to establish that
the State in question is unable or unwilling to protect its nationals?
The Court of Appeal answered the
question in the negative and, in doing so, made these statements:
In our view, the question as
worded must be answered in the negative. Once it is assumed that the state (Israel in this case) has political
and judicial institutions capable of protecting its citizens, it is clear that
the refusal of certain police officers to take action cannot in itself make the
state incapable of doing so. The answer might have been different if the
question had related, for example, to the refusal by the police as an
institution or to a more or less general refusal by the police force to provide
the protection conferred by the country’s political and judicial institutions.
In short, the situation
implied by the question under consideration recalls the following comments by
Hugessen J.A. in Canada (Minister of Employment and Immigration) v.
Villafranca (1992), 150 N.R. 232, at p. 233, 99 D.L.R. (4th) 334
(F.C.A.):
No government that makes any
claim to democratic values or protection of human rights can guarantee the
protection of all 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.
When the state in question is
a democratic state, as in the case at bar, the claimant must do more than
simply show that he or she went to see some members of the police force and
that his or her efforts were unsuccessful. The burden of proof that rests
on the claimant is, in a way, directly proportional to the level of democracy
in the state in question: the more democratic the state’s institutions, the
more the claimant must have done to exhaust all the courses of action open to
him or her (See Canada (Minister of Employment and Immigration) v.
Satiacum (1989), 99 N.R. 171, at p. 176 (F.C.A.), approved by Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689, at p. 725, 103 D.L.R. (4th)
1.)
[Emphasis added]
[22]
The
statements in this passage that reiterate Villafranca have already been addressed
above.
[23]
With
respect to the realistic ability of a claimant to discharge the evidentiary burden
of having sought state protection, the expectation on a claimant to “exhaust
all courses of action open to him or her” is relative to the full context of
the circumstances of the well-founded fear being experienced. This principle
is particularly important with respect to a claim based on gender-based
violence (see Vidhani v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 60 at paras. 15
and 16; and G.D.C.P. v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1331 at
para. 18).
[24]
The Gender
Guidelines provide RPD members with the guidance that, in determining a
gender-based claim, it is necessary to understand what actions can be
realistically expected of a woman who has suffered violence:
Decision-makers
should consider evidence indicating a failure of state protection if the state or its agents in the
claimant's country of origin are unwilling
or unable to provide adequate protection from gender-related persecution. 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.
When considering whether it is
objectively unreasonable for the claimant not to have sought the protection of
the state, the decision-maker should consider,
among other relevant factors, the social, cultural, religious, and economic
context in which the claimant finds herself. If, for example, a woman has
suffered gender-related persecution in the form of rape, she may be ostracized
from her community for
seeking protection from the state. Decision-makers should consider this type of
information when determining if the claimant should reasonably have sought
state protection
(Gender
Guidelines, Section C.2)
[25]
As guiding
authority, the Gender Guidelines cite the Supreme Court of Canada’s decision
in Lavallee in footnote 31:
For a discussion of the battered woman syndrome see R.
v. Lavallee, [1990] 1 S.C.R. 852. In Lavallee, Madame Justice Wilson addressed
the mythology about domestic violence and phrased the myth as "[e]ither
she was not as badly beaten as she claims, or she would have left the man long
ago. Or, if she was battered that severely, she must have stayed out of some
masochistic enjoyment of it." The Court further indicated that a
manifestation of the victimization of battered women is a "reluctance to
disclose to others the fact or extent of the beatings". In Lavallee,
the Court indicated that expert evidence can assist in dispelling these myths
and be used to explain why a woman would remain in a battering relationship.
[26]
It is important
to expand on the reference to Lavallee with respect to the relevance of
applying the statements in Kadenko to the circumstances of the
Applicant’s claim for protection.
[27]
Justice
Wilson in Lavallee enforces the concept that understanding the context
in which an action or inaction takes place is essential to judging the action
or inaction itself. While Lavallee dealt with judging the actions of a
woman who killed her abusive husband, the following statements, at paras. 31 to
34 and 38, are instructive with respect to the approach to be adopted when
dealing with a gender-based claim for protection, and, indeed, other factual
scenarios calling for enhanced knowledge and understanding on the part of
decision-makers:
Expert evidence on the
psychological effect of battering on wives and common law partners must, it
seems to me, be both relevant and necessary in the context of the present
case. How can the mental state of the appellant be appreciated
without it? The average member of the public (or of the jury) can be
forgiven for asking: Why would a woman put up with this kind of
treatment? Why should she continue to live with such a
man? How could she love a partner who beat her to the point of
requiring hospitalization? We would expect the woman to pack her
bags and go. Where is her self-respect? Why does she not
cut loose and make a new life for herself? Such is the reaction of
the average person confronted with the so-called "battered wife
syndrome". We need help to understand it and help is available from
trained professionals.
The gravity, indeed, the
tragedy of domestic violence can hardly be overstated. Greater media
attention to this phenomenon in recent years has revealed both its prevalence
and its horrific impact on women from all walks of life. Far from
protecting women from it the law historically sanctioned the abuse of women
within marriage as an aspect of the husband's ownership of his wife and his
"right" to chastise her. One need only recall the
centuries old law that a man is entitled to beat his wife with a stick "no
thicker than his thumb".
Laws do not spring out of a
social vacuum. The notion that a man has a right to
"discipline" his wife is deeply rooted in the history of our
society. The woman's duty was to serve her husband and to stay in
the marriage at all costs "till death do us part" and to accept as
her due any "punishment" that was meted out for failing to please her
husband. One consequence of this attitude was that "wife
battering" was rarely spoken of, rarely reported, rarely prosecuted, and
even more rarely punished. Long after society abandoned its formal
approval of spousal abuse tolerance of it continued and continues in some
circles to this day.
Fortunately,
there has been a growing awareness in recent years that no man has a right to
abuse any woman under any circumstances. Legislative initiatives
designed to educate police, judicial officers and the public, as well as more
aggressive investigation and charging policies all signal a concerted effort by
the criminal justice system to take spousal abuse
seriously. However, a woman who comes before a judge or jury with
the claim that she has been battered and suggests that this may be a relevant
factor in evaluating her subsequent actions still faces the prospect of being
condemned by popular mythology about domestic violence. Either she was not as
badly beaten as she claims or she would have left the man long
ago. Or, if she was battered that severely, she must have stayed out
of some masochistic enjoyment of it.
[…]
If it strains
credulity to imagine what the "ordinary man" would do in the position
of a battered spouse, it is probably because men do not typically find
themselves in that situation. Some women do, however. The
definition of what is reasonable must be adapted to circumstances which are, by
and large, foreign to the world inhabited by the hypothetical "reasonable
man".
IV. Reviewable error
in the RPD’s decision
A. Regarding
the application of Zalzali and Villafranca
[28]
In my
opinion, the following statement of the RPD in the decision under review does
not show a working understanding of the law on state protection:
The claimant provided no
evidence that the government of Brazil is in disarray and unable to govern and
as perfect protection (Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (F.C.A.)
and protection for all citizens at all times (Canada (Minister of Employment and Immigration)
v. Villafranca
(1992), 18 Imm. L.R. (2d) 130), is not the criteria for adequate protection.
In particular, it appears from
the statement that the Applicant was required to prove that the government of
Brazil is in a condition of collapse in order to rebut the presumption of state
protection which, as above described, is an error in law. In addition, the
decision, considered as a whole, contains no meaningful contextual application
of the law on state protection, which, as above described, is also an error in
law. For these reasons, I find that the RPD’s decision is patently
unreasonable.
B. Regarding
the application of Kadenko
[29]
As quoted
above, with respect to the Applicant’s action or inaction in seeking state
protection in Brazil, the RPD made the following
finding:
I find that her efforts to
avail herself of state protection falls far short of a diligent attempt prior
to seeking asylum abroad and does not rebut the presumption that the state can
protect its citizens (Canada (Attorney General) v. Ward, [1993] 2 S.C.R.
689 at 726). The claimant made no effort to approach higher authorities in Sao Paulo or to ascertain if the
investigation and failure to prosecute Silva was limited to a certain officer (Canada
(Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4th)
532).
Thus, Kadenko is applied
by the RPD to create the expectation that the Applicant in the present case should
have approached “higher authorities” or investigated the failure to prosecute
the predator in order to establish that she attempted to access state
protection. In my opinion, having regard to the decision in Lavallee, as
advanced in the Gender Guidelines, the expectations are capricious
because they are not based on a contextualized understanding of the Applicant’s
real life situation in Brazil; that is, there is no evidence
that, for her, the expectations are realistic. As a result, I find that the
RPD’s application of Kadenko results in a reviewable error and renders
the RPD’s decision patently unreasonable.
IV. Directions on the
re-determination
[30]
Counsel
for the Applicant argues that, given the uncontested facts found by the RPD in
the decision presently under review, for the re-determination, I should direct
the RPD to find that the Applicant is a person in need of protection. I find that
the nature of the errors in the RPD’s decision make it inappropriate to do so.
However, I do agree that this is an appropriate case for directions to be
given.
[31]
On the re-determination,
I direct that a differently constituted panel of the RPD is required to apply
the principles of law above described, and, in addition, is required to
evaluate the evidence, including the Applicant’s conduct in seeking state
protection, in a contextual analysis in conformity with the Gender Guidelines.
As I agree with Counsel for the Applicant that it is unfair to the Applicant to
be required to prove her credibility on the re-determination when no negative
credibility finding was made in the decision under review, I further direct
that the re-determination be conducted on the evidence in the existing record, and
the Applicant’s evidence already given be accepted as credible. However, I
also direct that, on the re-determination, the Applicant is at liberty to supply
any further elaborating evidence, and any new argument, as she might consider
necessary.
V. Costs
[32]
In my
opinion, special circumstances warrant an order of costs in favour of the
Applicant with respect to the present Application, quite apart from the fair agreement
reached that the RPD’s decision is rendered in error of fact. I find that the special
circumstance that exists for making a costs order is the challenging obligation
on Counsel for the Applicant to deal with the RPD’s failure to critically
analyse how to properly apply the decisions in Villafranca and Kadenko.
In my opinion, fixed costs of $5,000 are warranted.
ORDER
Accordingly, the decision under review is set aside, and the
matter is referred back for re-determination by a differently constituted panel
according to the directions stated in the reasons provided.
Fixed costs are awarded to the Applicant in the sum of $5,000.
CERTIFIED QUESTIONS
Counsel for the Respondent proposes the following questions
for certification:
1. Do judges of the Federal Court of Canada commit an error in law
in issuing a directed verdict to the Refugee Protection Division of the
Immigration and Refugee Board where the original panel hearing the claim did
not make any factual findings with respect to the evidence required to support
a refugee claim?
2. Do judges of the Federal Court of Canada commit an error in law
when they exercise their discretion in ordering costs, pursuant to Rule 22 of
the Federal Court Immigration and Refugee Protection Rules, where the
successful party’s counsel chose to persist in arguing a legal issue which was
moot?
3. Do judges of the Federal Court of Canada commit an error in law
when they exercise their discretion in ordering costs pursuant to Rule 22 of
the Federal Court Immigration and Refugee Protection Rules, on the basis
that the complexity of the legal issues constitutes a “special reason”?
To qualify for certification the issues underlying a
question must: transcend the interests of the immediate parties to the
litigation; be of broad significance or general application; and must be ones
which could be determinative of the appeal (Liyanagamage v. Canada (MCI),
[1994] FCJ No.1637 (C.A.)).
The first question posed is based on the premise that the
decision rendered herein constitutes a directed verdict. This premise is not
correct. The directions given do not direct a result, but relate only to the
evidence to be taken into consideration on the re-determination. Therefore, I
find that this question is not certifiable.
The second question posed is based on the premise that the
issue of state protection was rendered moot by the Respondent’s consent to a
re-determination due to factual error in the RPD’s decision under review. As
set out in the reasons, this premise is not correct. Therefore, I find that
this question is not certifiable.
In my opinion, the third question does not meet the criteria
for certification, and, therefore, it is not certifiable.
“Douglas
R. Campbell”
APPENDIX
Excerpts from:
Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689
Paragraph
45
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. Goodwin-Gill's statement, the
apparent source of the Board's proposition, reads as follows, at p. 38:
|
|
Fear of
persecution and lack of protection are themselves interrelated
elements. The persecuted clearly do not enjoy the protection of
their country of origin, while evidence of the lack of protection on either
the internal or external level may create a presumption as to the likelihood
of persecution and to the well-foundedness of any
fear. [Emphasis added.]
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|
Having established that the claimant has a fear,
the Board is, in my view, entitled to presume that persecution will be likely,
and the fear well-founded, if there is an absence of state
protection. The presumption goes to the heart of the inquiry, which
is whether there is a likelihood of persecution. But I see 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. 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 fears can be established through the use of such a presumption.
[Emphasis in the original]
[Emphasis added]
Paragraph 50
The issue that arises, then, is
how, in a practical sense, a claimant makes proof of a state's inability to
protect its nationals as well as the reasonable nature of the claimant's
refusal actually to seek out this protection. On the facts of this case, proof
on this point was unnecessary, as representatives of the state authorities
conceded their inability to protect Ward. Where such an admission is
not available, however, clear and convincing confirmation of a state's
inability to protect must be provided. For example, a claimant might
advance testimony of similarly situated individuals let down by the state protection
arrangement or the claimant's testimony of past personal incidents in which
state protection did not materialize. Absent some evidence,
the claim should fail, as nations should be presumed capable of protecting
their citizens. Security of nationals is, after all, the essence of
sovereignty. Absent a situation of complete breakdown of state
apparatus, such as that recognized in Lebanon in Zalzali, it should be
assumed that the state is capable of protecting a claimant.
[Emphasis added]
Paragraph 52
In summary, I find that state
complicity is not a necessary component of persecution, either under the
"unwilling" or under the "unable" branch of the
definition. A subjective fear of persecution combined with state
inability to protect the claimant creates a presumption that the fear is
well-founded. The danger that this presumption will operate too
broadly is tempered by a requirement that clear and convincing proof of
a state's inability to protect must be advanced. I recognize that
these conclusions broaden the range of potentially successful refugee claims
beyond those involving feared persecution at the hands of the claimant's
nominal government. As long as this persecution is directed at the
claimant on the basis of one of the enumerated grounds, I do not think the
identity of the feared perpetrator of the persecution removes these cases from
the scope of Canada's international obligations in this area. On
this note, I now turn to a consideration of these enumerated grounds.
[Emphasis added]
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