Date: 20060901
Docket: IMM-7411-05
Citation: 2006 FC 1056
Ottawa, Ontario, September
1, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
ALPHONSINE
NDIKUMANA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
The
burden of presenting “clear and convincing evidence” to prove a state’s
inability to protect should not be an impossible burden. It appears to defeat
the purpose of international protection when an unequivocally credible
claimant is required by a specialized tribunal to risk life and limb by
being told to seek ineffective protection from state authorities in the state
from which the claimant fled.
If the
specialized tribunal reaches its conclusion by appearing to ignore the country
condition evidence and without clear evidence in contradiction to the
claimant’s testimony than the state from which the claimant fled cannot be said
to offer state protection to that specific claimant.
For an
analysis of country condition evidence outside of a vacuum, an examination of
the “objective evidence” must include, where necessary, historical, political
and cultural antecedents, coupled with the current situation; thereby, the
specialized tribunal demonstrates it is not unreasonable or manifestly
unreasonable, as the case may warrant, in its analysis.
It is
incumbent on the specialized tribunal to recognize and acknowledge the
encyclopedia of references, dictionary of terms, thus, gallery of portraits which
often are contradictory and, at the very least, require brief articulation
as to why one set of facts and interpretations was chosen over another. Only
then can an adequately expressed decision emerge in respect of a specific
claimant.
Without a
transparently articulated decision in this regard by a specialized tribunal,
the analysis of the context and circumstances of the claimant cannot be
considered reasonable to any degree in judicial review and must be returned for
redetermination by the specialized tribunal.
JUDICIAL PROCEDURE
[2]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review under
the Federal Courts Act, R.S.C. 1985, c. F-7 of a decision of the Refugee
Protection Division of the Immigration and Refugee Board (Board), dated
November 2, 2005, wherein the Board determined that the Applicant was not a
Convention refugee or a person in need of protection.
BACKGROUND
[3]
The
Applicant, Ms. Alphonsine Ndikumana, is a citizen of Burundi. Her children,
Kessy Gakura, who is seven, and Elisa Bettine Dushime, who is four, base their
claim on their mother’s claim by reason of their membership in a particular
social group, namely family.
[4]
Ms.
Ndikumana is a Tutsi. In October 1993, her neighbourhood was attacked by
militant Hutus who killed many of her neighbours and friends and burned down
her home, believing she would die in the fire. She fled and, while hiding,
recognized some of the attackers as her neighbours.
[5]
In
October 2004, a group of armed men (including two she recognized from the
earlier massacre) appeared outside her home. They threatened her because,
having seen her in the marketplace, they had discovered she had not died in the
previous attack and were afraid she would testify against them. As other
neighbours awoke and came to investigate the source of the noise, the attackers
left. When she went to the authorities, she was told that the government did
not have sufficient resources to post a soldier at each citizen’s home for
protection.
[6]
On
November 1, 2004, armed men returned and broke into her home. Ms. Ndikumana and
her children fled while her husband hid in the house. The men vandalized her
home and left a message stating she would die if she stayed in Burundi.
[7]
Ms.
Ndikumana and her husband decided to seek protection separately; he left on his
own, heading to another town. As for Ms. Ndikumana and her children, after
seeking protection from the military, they were brought to a friend’s house. The
friend made arrangements for them to leave Burundi for the United
States
on November 26, 2004. After ten days in the United States, Ms. Ndikumana
and her children came to Canada and claimed refugee protection. She does
not know where her husband is now.
DECISION UNDER REVIEW
[8]
The
Board did not question Ms. Ndikumana’s credibility. They believed her story,
accepting her testimony as credible. She did demonstrate a well-founded fear of
persecution.
[9]
The
Board found, however, that there was state protection available to Ms.
Ndikumana. The authorities did respond both times she was attacked and she gave
them a report of the events at issue. The Board found that Ms. Ndikumana did
not refute the presumption of state protection with clear and convincing
evidence of the inability of the authorities in Burundi to protect
her.
ISSUES
[10]
Did
the Board err in determining that Ms. Ndikumana is not a Convention refugee or
a person in need of protection because of the Board’s finding that there is state
protection available to her in Burundi?
ANALYSIS
Statutory scheme
[11]
According
to section 96 of the IPRA, a person is a refugee if they have a well-founded
fear of persecution which is based on their race, religion, nationality,
membership in a particular social group or political opinion:
|
96. A Convention refugee
is a person who, by reason of a well-founded fear of persecution for reasons
of race, religion, nationality, membership in a particular social group or
political opinion,
(a) is outside each of their
countries of nationality and is unable or, by reason of that fear, unwilling
to avail themself of the protection of each of those countries; or
(b) not having a country of
nationality, is outside the country of their former habitual residence and is
unable or, by reason of that fear, unwilling to return to that country.
|
96. A qualité de réfugié
au sens de la Convention – le réfugié – la personne qui, craignant avec
raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit se trouve hors de tout pays dont
elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se
réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de nationalité
et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne
peut ni, du fait de cette crainte, ne veut y retourner.
|
[12]
Subsection
97(1) of IRPA explains what constitutes a person in need of protection:
|
97. (1) A person in need
of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to a danger, believed on
substantial grounds to exist, or torture within the meaning of Article 1 of
the Convention Against Torture; or
(b) to a risk to their life or
to a risk of cruel and unusual treatment or punishment if
(i)
the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii)
the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii)
the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv)
the risk
is not caused by the inability of that country to provide adequate health or
medical care.
|
97. (1) A qualité de
personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit au risque, s’il y a des motifs
sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i)
elle ne
peut, ou de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la
menace ou le risque ne résulte pas de sanctions légitimes – sauf celles
infligées au mépris des normes internationales – et inhérents à celles-ci ou
occasionnés par elles,
(iv)
la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
Standard of
review
[13]
The
standard of review for the issue of state protection is that of reasonableness
simpliciter as it is a mixed question of fact and law which involves applying a
legal standard, “clear and convincing confirmation of a state’s inability to
protect” (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, [1993]
S.C.J. No. 74 (QL), at paragraph 50), to a set of facts (Chaves v. Canada (Minister of
Citizenship and Immigration), 2005 FC 193, [2005] F.C.J. No. 232 (QL),
at paragraphs 9-12).
Did the Board err in determining that Ms.
Ndikumana is not a Convention refugee or a person in need of protection because
of the Board’s finding that there is state protection available to her in Burundi?
[14]
Absent
a situation of complete breakdown of state apparatus such as was found in Zalzali
v. Canada (Minister of
Citizenship and Immigration), [1991] 3 F.C. 605 (F.C.A.), [1991] F.C.J.
No. 341 (QL), it is generally presumed that a state is able to protect its
citizens. A refugee claimant must therefore provide clear and convincing
evidence of the state’s inability to protect in order to rebut this presumption
(Ward, above, at paragraph 50 and 52; Mendivil v. Canada (Secretary
of State) (1994), 167 N.R. 91 (F.C.A.)).
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.
…
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. (Ward,
above)
[15]
A
state’s inability to provide perfect protection is insufficient to establish
that it is unwilling or unable to provide reasonable protection in the
circumstances. Thus, it is not sufficient for a claimant to show that his
government has not always been effective in protecting persons in his
particular situation (Canada (Minister of Employment and Immigration) v.
Villafranca, [1992] F.C.J. No. 1189 (F.C.A.) (QL); Ward, above.).
No government that makes any
claim to democratic values or protection of human rights can guarantee the
protection of all of its citizens at all times. Thus, it is not enough for a
claimant merely to show that his government has not always been effective at
protecting persons in his particular situation. Terrorism in the name of one
warped ideology or another is a scourge afflicting many societies today; its
victims, however much they may merit our sympathy, do not become convention
refugees simply because their governments have been unable to suppress the
evil. Where, 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), a refugee may justly claim to be unable to avail himself
of its protection. Situations of civil war, invasion or the total collapse of
internal order will normally be required to support a claim of inability. 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
(Villafranca,
above)
[16]
Ms.
Ndikumana has provided clear testimony and convincing evidence that the state
of Burundi is unable to
reasonably protect her in her point specific situation, thus rebutting the
presumption of state protection in her regard.
[17]
Ms.
Ndikumana testified that she was specifically targeted because she had
witnessed the brutal attacks and killings of several people during the 1993
genocide in Mubimbi by Hutu militants, supporters of the former president
Melchior Ndadaye.
[18]
Ms.
Ndikumana further testified that, several years after the genocide, some of the
perpetrators who had returned from exile in Tanzania were able to recognize her
in the central market of Bujumbura. Several of these men
followed her to her home, armed with grenades and machetes, determined to kill
her in an attempt to prevent her from testifying in court against them.
[19]
Ms.
Ndikumana provided oral testimony and documentary evidence to the effect that
she sought protection from the authorities after having experienced many
incidents of harassment and death threats but was informed that “les forces de
l’ordre ne sont pas en mesure de protéger chaque ménage”. Ms. Ndikumana submits
that the Board misconstrued the evidence when it stated that she had sought
“des garanties de protection supérieures à celles dont dipose l’État de Burundi.” She
testified that she was personally in danger and, as such, was reasonably
expected to seek some form of protection from her own government. She further
testified that she did not feel her government could provide effective
protection.
[20]
Respectfully,
the Board made an erroneous finding when it stated that Ms. Ndikumana requested
a level of protection which is above what a country such as Burundi can be
expected to provide. According to her narrative in the PIF, the military did
not state that the level of protection requested by Ms. Ndikumana was above was
they could provide. The military simply stated that they did not have the
manpower at that time to assist her in her request for an investigation since
most of their officers were on the front fighting the civil war. At no time did
Ms. Ndikumana request a “superior” level of protection. One would expect anyone
in her situation to request that the matter be investigated by the military.
[21]
The
documentary evidence further established that, in the current political and
military situation of Burundi, extrajudicial
executions of civilians remain a serious problem that is rarely investigated.
This amounts to government inability to adequately act or even react in the
circumstances of this specific case (cas d’espèce).
[22]
Ms.
Ndikumana had an obligation to approach her state for protection in situations
in which protection might reasonably be forthcoming. Furthermore, she requested
and expected a standard of protection adequate to the level and severity of the
persecution she was facing. The fact that the military attended her residence
after each attack to take a report does not demonstrate actual or adequate protection.
There is no evidence that Ms. Ndikumana requested any type of protection other
than an investigation by the police and their cooperation in contacting the
assailants, who were known to her.
[23]
The
simple willingness of the state to protect its citizens does not constitute
protection; the state must provide actual protection. This was held by Madam
Justice Danièle Tremblay-Lamer in Bobrik v. Canada (Minister of
Citizenship and Immigration), [1994] F.C.J. No. 1364 (QL), at paragraph
13:
Thus, even when the state is willing to
protect its citizens, a claimant will meet the criteria for refugee status if
the protection being offered is ineffective. A state must actually provide
protection, and not merely indicate a willingness to help. Where the evidence
reveals that a claimant has experienced many incidents of harassment and/or
discrimination without being effectively defended by the state, the presumption
operates and it can be concluded that the state may be willing but unable to
protect the claimant.
[24]
The
burden of presenting “clear and convincing evidence” to prove the state’s
inability to protect should not be an impossible burden. It seems to defeat the
purpose of international protection when the Board requires the claimant to
risk her life seeking ineffective protection from the state of Burundi.
[25]
The
Board arrived at its conclusion by ignoring the country conditions in Burundi and without
clear evidence to contradict Ms. Ndikumana’s testimony that Burundi would not
offer her effective protection.
CONCLUSION
[26]
This
Court finds that the Board erred in assessing the evidence and ignored evidence
before it in concluding that state protection was available to Ms. Ndikumana. As
the decision of the Board was neither based on the evidence before it, nor supported
by this evidence, it is unreasonable. This application for judicial review is
therefore granted and the decision is returned to the Board for
redetermination.
JUDGMENT
THIS
COURT ORDERS that
1.
The application for
judicial review be granted and that the decision be returned to the Board for
redetermination;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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