Docket: IMM-13685-23
Citation: 2025 FC 112
Ottawa, Ontario, January 20, 2025
PRESENT: Mr. Justice Sébastien Grammond
BETWEEN:
|
MARCOS ANDRES RALEK HORODIUK
|
ARELYS DE LA SANTISIMA TRINIDA ROJAS CARDIVILLO
|
SARAH VALENTINA RALEK ROJAS
|
Applicants
|
and
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
[1] The Refugee Protection Division [RPD] of the Immigration and Refugee Board [IRB] rejected the applicants’ claim for refugee protection. It found that Mr. Ralek could avail himself of state protection in Argentina, as he is a citizen of that country. Moreover, it found that Ms. Rojas was subject to the exclusion under Article 1E of the Convention relating to the Status of Refugees [the Convention].
[2] The applicants are now seeking judicial review of the RPD’s decision. I am granting their application because the RPD’s analysis regarding state protection was unreasonable. In turn, this also taints the RPD’s findings regarding Article 1E, because they are based directly on the availability of state protection.
I. Background
[3] The applicant, Mr. Ralek, is a citizen of Argentina and Ecuador. His wife, the applicant Ms. Rojas, is a citizen of Venezuela. Their daughter, the applicant Sarah, is a citizen of Venezuela and Ecuador. They lived in Venezuela until 2016. They state that they fled that country for Ecuador. In 2018, they fled Ecuador to settle in Argentina.
[4] In Argentina, Mr. Ralek and Ms. Rojas launched a movement to advocate for the rights of migrants, in particular Venezuelans, and call out the discrimination and persecution they face. In 2019, they began actively supporting a candidate in the presidential elections who eventually lost, and they spoke out about the alleged link between Kirchnerism and drug trafficking. Because of these activities, they received death threats.
[5] The applicants allege that they sought police protection several times, but did not receive it. As soon as they learned of the first death threat in December 2019, Mr. Ralek went to the police station to report it. He was not well received and was promptly redirected to the police headquarters. An officer at the prosecutor’s office took his complaint and assured him that a police car would be sent to monitor his residence, that an investigation would be launched and that the applicants would be kept informed of the progress of the investigation. However, the applicants never saw any police car and received no updates. The applicants therefore returned to the police headquarters two days later to express their outrage and were told the same information again by the officer. The next day, when they received another death threat by phone, they decided to move to another city.
[6] In April 2020, when they received another threat on WhatsApp, the applicants alerted the local police in the city they had left in December of the previous year. The police responded curtly that they had to be patient, submit a new complaint and add it to their first complaint.
[7] In November 2020, the applicants received an extortion call on their residential phone line. They called the local police, who promised to send a patrol. When they noticed that no patrol had been dispatched, the applicants again contacted the police, and a patrol finally went to their residence. However, when they arrived, the officers had an unpleasant attitude and refused to take their complaint.
[8] In fact, when they received another death threat by phone in March 2021, the applicants felt that they had exhausted all recourse with the police and that they had to flee from Argentina.
[9] In 2021, the applicants travelled to the United States and then Canada, where they claimed refugee protection. The RPD rejected their claim. It accepted the fact that the death threats the applicants had received were related to their political opinion and that they amounted to persecution. However, it concluded that the applicants had not rebutted the presumption that Argentina could protect them.
[10] With respect to the issue of state protection, the RPD analyzed in detail the interactions between the applicants and the police in Argentina. It was of the opinion that the applicants had not made sufficient efforts to draw the police’s attention to their situation and that they should have complained to the hierarchical superiors of the police officers with whom they spoke. At any rate, the police had shown a willingness to act. The RPD also noted that the documentary evidence did not show that state protection was lacking in Argentina. It therefore found that Mr. Ralek was neither a Convention refugee nor a person in need of protection.
[11] Moreover, the RPD concluded that Ms. Rojas was subject to the exclusion under Article 1E of the Convention. After having reviewed the relevant legislation, it found that Ms. Rojas likely did not lose her status as a resident of Argentina, because her spouse is a citizen of that country. Applying the jurisprudential guide regarding Article 1E, the RPD then asked whether Ms. Rojas would be exposed to a serious possibility of persecution in Argentina. It gave a negative answer, essentially based on its findings about state protection. It therefore determined that Ms. Rojas was excluded pursuant to Article 1E.
[12] As for Sarah, the RPD concluded that she was in the same situation as either her father or her mother. She was therefore not a refugee or a person in need of protection. She was also excluded under Article 1E.
[13] The applicants are now seeking judicial review of the RPD decision.
II. Analysis
[14] I am granting the application. The RPD’s analysis regarding state protection is unreasonable as it disregarded the analytical framework established by this Court’s jurisprudence, in particular by imposing an excessively high requirement on the applicants to seek protection from Argentina. Moreover, the second component of the RPD’s decision, regarding exclusion under Article 1E, is also unreasonable, because the two components of the decision are inextricably linked.
A. State Protection
[15] The RPD rendered an unreasonable decision because its reasoning deviates from the guidelines established in the jurisprudence regarding state protection. According to Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov], administrative decision makers must respect the constraints that govern their decision making process. One of these constraints results from precedents: Vavilov, at paragraphs 111 and 112. For this reason, I will begin with a review of how the courts have defined the concept of state protection. I will then analyze the RPD decision to determine whether its reasoning respects the constraints imposed by the jurisprudence.
(1) Principles
[16] Even if a person has well-founded reasons to fear persecution on one of the grounds set out in the Convention, refugee status can be denied if the person can avail themselves of the protection of their own country. It is a concept known as “state protection.”
A state is presumed capable of protecting its nationals. In other words, refugee claimants have the burden of proving not only that they have a valid reason to fear persecution but also that their country of nationality is unable or unwilling to protect them, or that there are valid reasons to not seek this protection: Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689 at 724–725 [Ward].
[17] In this analysis, it is not enough to highlight the efforts made by the authorities of the country in question to ensure protection. Instead, the focus must be on the results or what is generally called the “operational adequacy”
of the measures that are actually available: AB v Canada (Citizenship and Immigration), 2018 FC 237 at paragraph 19 [AB]; Lakatos v Canada (Citizenship and Immigration), 2018 FC 367 at paragraph 21; Burai v Canada (Citizenship and Immigration), 2020 FC 966 at paragraph 25; Cervenakova v Canada (Citizenship and Immigration), 2021 FC 477 at paragraph 26; Whyte v Canada (Citizenship and Immigration), 2023 FC 1420 at paragraph 21.
[18] It is often said that when a state itself is not the source of the alleged persecution, refugee claimants are required to have “exhausted their remedies”
in their country of nationality. However, this so-called rule must not be given a scope that would effectively thwart the objectives of the Convention. In Ward, Justice La Forest of the Supreme Court of Canada issued the following warning, at 724:
. . . 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.
[19] He then laid the groundwork for the appropriate method of analysis:
. . . 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.
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 . . . 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.
[20] In Majoros v Canada (Citizenship and Immigration), 2013 FC 421, [2014] 4 FCR 482 [Majoros], my colleague Justice Russell Zinn summarized these principles as follows:
. . . whether a claimant has sought or diligently sought the state’s protection is—properly speaking—not a legal requirement for refugee protection. Rather, it goes to whether the claimant has provided the “clear and convincing” evidence that is needed to displace the presumption of state protection. Because of the strong presumption of state protection, concrete, individual attempts to seek the protection of the state are—as evidence—perhaps usually necessary (depending on the circumstances and other evidence) to rebut that presumption. In that sense only, seeking the protection of the state might amount to a de facto requirement in many cases.
[21] Similarly, in Marinaj v Canada (Citizenship and Immigration), 2020 FC 548 at paragraphs 63–67, my colleague Justice John Norris noted that “unsuccessfully seeking the protection of one’s country of nationality is not a precondition for refugee protection.”
In other words, the purpose of the analysis of the refugee claimant’s efforts to obtain state protection is not to ensure some sort of procedural fairness for the police forces in a foreign country, but instead, to assess the availability of that protection.
[22] Moreover, this Court’s case law underscores that providing state protection is the responsibility of the police and not other organizations. Therefore, refugee claimants cannot be required to approach human rights commissions, ombudsmen or other similar organizations. See, on this point, Zepeda v Canada (Minister of Citizenship and Immigration), 2008 FC 491 at paragraphs 24–25, [2009] 1 FCR 237; Katinszki v Canada (Citizenship and Immigration), 2012 FC 1326 at paragraphs 14–15; Aurelien v Canada (Citizenship and Immigration), 2013 FC 707 at paragraph 16; Majoros, at paragraph 20; Graff v Canada (Citizenship and Immigration), 2015 FC 437 at paragraphs 20–25; Varga v Canada (Citizenship and Immigration), 2020 FC 102 at paragraphs 102–103.
[23] Lastly, state protection is to be assessed using a contextual approach that takes into consideration the claimant’s profile: Gonzalez Torres v Canada (Citizenship and Immigration), 2010 FC 234 at paragraphs 37–38, [2011] 2 FCR 480; Jaworowska v Canada (Citizenship and Immigration), 2019 FC 626 at paragraph 45; Matthias v Canada (Citizenship and Immigration), 2023 FC 619; Andre v Canada (Citizenship and Immigration), 2024 FC 1563 [Andre]. Indeed, a state that generally protects its citizens can fail to offer adequate protection to some categories of people or with respect to certain forms of persecution. Ward provides a striking example: although one might think that Ireland is usually able to protect its nationals, the nature of the threat Mr. Ward was facing rendered that protection illusory.
(2) Application
[24] In my view, the RPD’s decision is unreasonable because it disregarded the principles stated above. In fact, the RPD considered exhausting remedies in Argentina as a strict duty rather than a means of proof. It thereby committed the error noted in Majoros.
[25] We must keep in mind that the RPD considered the applicants to be credible and concluded that the death threats they received amounted to persecution. However, instead of examining the manner in which the police responded or failed to respond to the applicants’ calls, the RPD focused mainly on the additional steps the applicants could have taken but did not.
[26] Thus, the RPD criticizes the applicants for having moved, in response to certain threats, instead of filing another complaint. I have trouble with the RPD’s dim view of this move when it seems to confirm the seriousness of the applicants’ fears at the time and their feeling that the police were not adequately protecting them. One must not forget that the goal of the analysis is to determine whether state protection is adequate and not to judge the applicants’ behaviour in light of what a “reasonable refugee”
would or should have done.
[27] Moreover, the RPD imposed a duty on the applicants to speak to the hierarchical superiors of the police with whom they had interacted. At paragraph 43 of its decision, it states the following:
[translation]
At no time did they undertake steps with other police units or seek the intervention of the senior officers of the police or public employees with whom they interacted. The also did not actively follow up on the only official complaint filed, other than by the above-noted actions, and were therefore not aware of the outcome of this complaint.
[28] As I mentioned earlier, state protection is expected to be provided by the police. A refugee claimant is not required to file complaints with other organizations. If the police response is inadequate, it follows that the presumption of state protection is rebutted. There is no basis for imposing a duty to take additional steps. This is even more true when the concrete results of these additional steps appear to be uncertain. In this regard, the RPD suggested that the applicants could have relied on an [translation] “email mechanism”
available in a complaint form that [translation] “invites victims to share their opinion on how they were treated.”
However, the RPD offers no analysis of the effectiveness of such a recourse to ensure the protection of the applicants, who, one must not forget, had received death threats. It does not explain how a complaint to the hierarchical superiors of the officers they had spoken to would have allowed the applicants to benefit from state protection.
[29] Lastly, during the hearing, the RPD required that the applicants take additional steps to find out what happened to the complaints they had filed when they were still in Argentina. The RPD concluded that the steps the applicants took were [translation] “too little too late”
(paragraph 45). At the hearing before this Court, however, the Minister acknowledged that the applicants had no duty to take any additional steps to obtain Argentina’s protection after arriving in Canada.
[30] In short, the RPD focused its analysis on the reasonableness of the applicants’ actions instead of the operational adequacy of state protection. The following excerpt from the reasons shows that the RPD imposed on the applicants a duty to take persistent steps to seek state protection instead of inquiring into the adequacy of that protection:
[translation]
Although the panel is aware of the applicants’ state of mind at the time of the threats, it is of the opinion that the efforts [to] draw the authorities’ attention, provide them with all the information at their disposal, seek them out as new facts arose, and insist they take action—in the form of regular follow-ups or additional steps—were limited overall.
[31] With regard to the central issue it was to consider, namely the operational effectiveness of state protection, the RPD simply states that the police took the complaint and that the lack of a result does not imply there is a lack of state protection. However, as I explained in AB, at paragraph 19, “the fact that the police took some action in an individual case [does not] prove the adequacy of state protection.”
The RPD merely notes that a patrol car was sent and a complaint was taken. It does not inquire as to whether these measures afforded adequate protection to the applicants insofar as they were the subject of repeated death threats. In other words, it is not sufficient to note the police’s “willingness to respond:”
the protection must be real and adequate, and the RPD should have assessed whether, concretely, the police protected the applicants as required by the case law cited above. By focusing exclusively on the police’s alleged “willingness to respond,”
the RPD failed to consider the operational effectiveness of the protection offered, and adopted an analysis that effectively trivialized the death threats received by the applicants. That analysis is unreasonable.
[32] The RPD committed another error by neglecting to consider the specific profile of the applicants, which must be factored into the analysis of the adequacy of state protection. In this case, the applicants are seen as foreigners. Moreover, they organized activities to advocate for migrant rights and expressed negative opinions about the party in power. One must keep in mind that several South American countries are facing an influx of refugees from Venezuela. The RPD should have examined the adequacy of state protection not in the abstract, but in light of the specific profile of the applicants. As in Andre, the RPD should have considered that the police forces could be indifferent or even hostile towards certain groups.
[33] In fact, the only aspect of the applicants’ profile that the RPD noted was the fact they were [translation] “sophisticated, have extensive knowledge of their rights and are university graduates.”
The RPD seems to infer that the applicants had a heavier burden of seeking out the various organizations the RPD mentions in its decision. However, neither the RPD nor the Minister provided any authority for the proposition that “sophisticated”
refugee claimants must make additional efforts to claim state protection, and I do not know of any. I have trouble understanding why refugee claimants who are university graduates would bear a heavier burden.
[34] To summarize, in concluding that the applicants had not rebutted the presumption of state protection, the RPD committed four errors that render its decision unreasonable and justify the intervention of this Court with regard to Mr. Ralek’s claim: (1) it required overly burdensome steps to seek state protection; (2) it did not analyze the effectiveness of the police’s actions; (3) it did not perform a contextual analysis adapted to the applicants’ profile; and (4) it increased the applicants’ burden given their degree of “sophistication.”
In doing so, the RPD strayed from the fundamental issue it was to decide, namely whether the protection offered by Argentina was operationally adequate.
B. Analysis Under Article 1E of the Convention
[35] I now turn to Ms. Rojas’s situation. The RPD found that she was excluded from the protection afforded by sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act], because of the combined effect of Article 1E of the Convention and section 98 of the Act. It offered two alternative grounds in support of this finding.
[36] First, it found that Ms. Rojas had permanent resident status in Argentina and that she had not met her burden of showing that she had lost this status because of her departure. Applying jurisprudential guide MB8-00025, which requires examining the risk refugee claimants would face in their country of residence before finding that they are excluded under Article 1E, the RPD inquired as to whether Ms. Rojas would be exposed to a risk by returning to Argentina. It answered this question in the negative, essentially on the grounds that led it to reject Mr. Ralek’s claim for refugee protection, namely the availability of state protection.
[37] Second, and alternatively, the RPD considered the possibility that Ms. Rojas had lost her permanent resident status in Argentina. It then applied the analytical framework set out in Zeng v Canada (Minister of Citizenship and Immigration), 2010 FCA 118, [2011] 4 FCR 3. It weighed the various factors highlighted in that decision to decide whether it would be reasonable to require Ms. Rojas to make efforts to reacquire this status and return to Argentina. To conclude that this was the case, it relied heavily on the fact that Ms. Rojas would benefit from state protection and that she would therefore not be exposed to any risk should she return to that country.
[38] Therefore, the availability of state protection was an essential link in these two chains of reasoning that the RPD offered to justify its finding that Ms. Rojas was excluded under Article 1E. Thus, since the RPD’s findings regarding state protection were unreasonable, its reasoning in regard to Ms. Rojas’s exclusion is also unreasonable.
[39] It must be noted that my conclusion is based on the analytical framework set forth by the Refugee Appeal Division [RAD] in jurisprudential guide MB8-00025, according to which a claimant’s risk in their country of residence must be taken into consideration before establishing that they are excluded under Article 1E. At the hearing, both parties confirmed that they considered this jurisprudential guide to be well founded and that the RPD had to adopt its approach in the present case.
[40] I am nonetheless aware of Tshimuangi v Canada (Citizenship and Immigration), 2024 FC 1354 [Tshimuangi], in which a RAD decision that relied on the jurisprudential guide was found to be unreasonable. That decision echoes certain earlier decisions of this Court, which also found that the risk in the country of residence has no bearing on the exclusion under Article 1E: Saint-Paul v Canada (Citizenship and Immigration), 2020 FC 493 at paragraphs 55–57 [Saint-Paul]; Celestin v Canada (Citizenship and Immigration), 2020 FC 97, [2020] 2 FCR 677 [Celestin]. However, other decisions of this Court ruled that such a risk must be considered: Mwano v Canada (Citizenship and Immigration), 2020 FC 792 at paragraph 23; Lauture v Canada (Citizenship and Immigration), 2023 FC 1121 at paragraph 36; Exavier v Canada (Citizenship and Immigration), 2024 FC 1240 at paragraph 27. Lastly, certain decisions found the IRB’s decisions to be reasonable when they assessed the risk in the country of residence, without taking a firm position as to the scope of Article 1E: Joseph v Canada (Citizenship and Immigration), 2020 FC 839 at paragraph 6; Jean Philippe v Canada (Citizenship and Immigration), 2021 FC 48 at paragraph 14.
[41] In my humble opinion, in a situation where the Minister and the refugee claimants agree that the jurisprudential guide is well founded, the Court must proceed with the utmost caution. Parliament entrusted the enforcement of the Act to the IRB. Judicial review is based on the premise that Parliament intended to grant administrative bodies considerable latitude in interpreting the laws they are to apply: Vavilov, at paragraph 24. It follows that “a court should generally pause before definitively pronouncing upon the interpretation of a provision entrusted to an administrative decision maker”
: Vavilov, at paragraph 124.
[42] With respect, I cannot agree with the reasoning set forth in Tshimuangi. Instead, I find that the jurisprudential guide MB8-00025 is reasonable. The RAD carefully reviews the text, context and purpose of Article 1E of the Convention to conclude that it is necessary to consider the risk in the country of residence when applying this provision. It carefully reviews the arguments to the contrary developed in Saint-Paul and Celestin, but explains convincingly “why a different interpretation is preferable”
: Vavilov, at paragraph 112. It considered the relevant rules of international law as required by the Supreme Court in Mason v Canada (Citizenship and Immigration), 2023 SCC 21, at paragraphs 104–117. With its impeccable reasons, the RAD showed that it rendered its decision “by bringing [its] institutional expertise and experience to bear”
: Vavilov, at paragraph 93.
[43] According to article 31 of the Vienna Convention on the Law of Treaties, “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
This method coincides with the modern interpretation method enshrined in Canadian law in Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 S.C.R. 27. However, the allegedly “clear”
wording of Article 1E cannot be relied upon to avoid considering its context and purpose. It used to be commonplace to state that one shall not interpret a text whose meaning is “clear.”
Even though this idea was expressed in Supreme Court decisions until the 1990s, the modern interpretation method instead requires that the text, context and purpose of the relevant provision be taken into account in all cases. In ATCO Gas & Pipelines Ltd v Alberta (Energy & Utilities Board), 2006 SCC 4 at paragraph 48, [2006] 1 S.C.R. 140, the Court stated:
This Court has stated on numerous occasions that the grammatical and ordinary sense of a section is not determinative and does not constitute the end of the inquiry. The Court is obliged to consider the total context of the provisions to be interpreted, no matter how plain the disposition may seem upon initial reading . . .
[44] More recently, in La Presse inc v Québec, 2023 SCC 22 at paragraph 23, the Court reaffirmed the principle that it is not sufficient to merely read the wording of the legislation, as “clear”
as it might seem:
. . . the plain meaning of the text is not in itself determinative and must be tested against the other indicators of legislative meaning — context, purpose, and relevant legal norms . . . The apparent clarity of the words taken separately does not suffice because they “may in fact prove to be ambiguous once placed in their context. The possibility of the context revealing a latent ambiguity such as this is a logical result of the modern approach to interpretation” . . .
[45] In the jurisprudential guide, the RAD analyzed the wording of Article 1E, but did not find it conclusive. It gave more weight to the context and purpose of the provision. In my view, the RAD did not disregard the principles of statutory interpretation in drawing such conclusions.
[46] Moreover, the RAD noted the strange consequences that would result from the opposite interpretation: the IRB would not be able to review the risk a person would face in a country where they have the status of resident, whereas it must review that same risk in the case of a citizen of that country. The circumstances of the present case provide a vivid illustration of this absurdity: the RPD reviewed the risk in Argentina for Mr. Ralek, who is a citizen of that country, whereas it could not do so for Ms. Rojas, whose status in Argentina is more precarious.
[47] The case must therefore be returned to the RPD for it to assess whether Ms. Rojas is excluded under Article 1E on the basis of the finding that it will draw about the risk she would face in Argentina. The evaluation of that risk will depend on the availability of state protection, analyzed in conformity with these reasons. It must be noted that a finding that Ms. Rojas is not excluded under Article 1E would not be the end of the analysis. As the RAD notes in its jurisprudential guide, the RPD would then have to consider whether Ms. Rojas faces a risk set out in sections 96 and 97 of the Act in Venezuela, where she holds citizenship.
[48] The applicants in this case raised other arguments to show that the RPD’s findings regarding Ms. Rojas were unreasonable. Given the manner in which I am deciding the case, it is not necessary for me to address these issues. Upon reflection, I also conclude that it is not necessary for me to rule on the repercussions that Freeman v Canada (Citizenship and Immigration), 2024 FC 1839, could have on the RPD’s reasoning. Depending on the manner in which it will address the case upon redetermination, the RPD may consider these issues attentively.
III. Conclusion
[49] For the foregoing reasons, I am of the opinion that the RPD’s analysis regarding the availability of state protection in Argentina was unreasonable. This taints not only the RPD’s findings regarding Mr. Ralek, but also those regarding Ms. Rojas, as well as those regarding their daughter. The application for judicial review will therefore be granted, and the matter will be returned to the RPD for reconsideration.
Email this Content