Lawyers from this office will be attending before the Federal Court on 5 separate judicial review applications this week. Bjorn, Ram, Suha and I are appearing before Justices de Montigny and Zinn challenging decisions from various decision makers including the Immigration Appeal Division, the Refugee Protection Division and immigration officers.
My matter involves the (faulty) analysis of RPD Member Philip MacAulay on the issue of state protection. Now, state protection was canvassed by the Supreme Court of Canada in a decision called Ward. In essence, before succeeding on a refugee claim, the claimant must show that he or she was unable or unwilling to avail him or herself of the protection of the country of reference. It's not enough for the claimant to simply state that he or she doesn't believe that state protection is unavailable. This is a contextual analysis. The RPD needs to assess the nature of the harm; the nature of the agent of persecution; the efforts taken by the claimant to seek protection; the response from the authorities; past experience dealing with state authorities; the experiences of similarly situated individuals and the available country condition evidence.
There is a presumption at play. States are presumed to be capable of protecting their citizens. This presumption can be rebutted by the refugee claimant. However, this obligation of rebutting the presumption should not be an impossible one. A claimant is not required to show that he or she has exhausted all avenues; just that he or she has taken all steps reasonable in the circumstances. The claimant does not have to risk his or her life seeking ineffective protection of a state merely to demonstrate the (in)effectiveness. A claimant is required to approach the state for protection only where protection might reasonably be forthcoming.
The RPD Member in the case at bar however, seems to require exactly that from the claimants. On no less than 3 separate occasions, the RPD Member stated the following:
"...In my assessment, a claimant in a situation where they have not sought state protection at all, has the onus to demonstrate with clear and convincing evidence on a balance of probabilities that going to the police would have put their lives at risk if they hope to successfully justify never seeking protection. These claimants have failed to do so in this case."
"...the claimants have provided insufficient evidence to indicate to me on a balance of probabilities that, if they would have sought or, in future would seek, state protection from those who they allege wish to persecute them or do them harm in Mexico, that, in so doing, their lives would, as a result, be at risk.." [Yes, that is in fact a sentence, and the entire sentence contains no less than 10 commas and 113 words]
"...As well, they have not demonstrated that, if they had sought protection, their lives would likely have been at risk for doing so or that adequate state protection would not have been available to them in Mexico..."
This new test for state protection seems to be some sort of chimera or Frankenstein, grafted from a couple of different cases but one that distorts the actual principles at play. No reference to any case by any level of Court was provided.
A refugee claimant does not need to show that his or her life would be risked in approaching the state. They simply need to show that they have taken all steps reasonable in the circumstances, taking into account the context of the country of reference.
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