Category: State Protection

The Court set aside a decision based on adequate state protection citing the failure of the tribunal to assess the applicant's personal circumstances.

The Court set aside a decision that there was adequate state protection holding that mere intentions were not sufficient: [15] The bulk of the Board’s decision is taken directly from document 5.3 of the National Documentation Package. This reference enumerates the existing legislation in St. Vincent, proposed legislative measures and the government’s intentions regarding services for victims of domestic violence. This focuses more on good intentions and possible future measures than the actual protections in place. The jurisprudence is clear that findings of state protection cannot solely rely on government intentions and proposed legislations: Clyne v Canada (Minister of Citizenship and Immigration), 2004 FC 1670 at para 8; Mitchell v Canada (Minister of Citizenship and Immigration), 2006 FC 133 at paras 9-10). Nor does the Board’s decision mention the many documents in the record which outline the ineffectiveness of the measures summarized in the cited reference.

The Court set aside a decision where there was a finding of adequate state protection noting: [15] The Board was required to justify its finding that Ms. Varela had not rebutted the presumption, in a transparent and intelligible way (Hazime v Canada (Minister of Citizenship and Immigration), 2011 FC 793, [2011] FCJ No 996 at para 17). The Board did not meet this standard of reasonableness. [16] The Board did not provide any analysis of the operational adequacy of the efforts undertaken by the government of Honduras and international actors to improve state protection in Honduras. While the state’s efforts are indeed relevant to an assessment of state protection, they are neither determinative nor sufficient (Jaroslav v Canada (Minister of Citizenship and Immigration), 2011 FC 634, [2011] FCJ No 816 at para 75). Any efforts must have “actually translated into adequate state protection” at the operational level (Beharry v Canada (Minister of Citizenship and Immigration), 2011 FC 111 at para 9. [17] Here, while the Board acknowledged that the police were unsuccessful in providing protection to Ms. Varela, it failed to assess how the efforts to deal with gang violence had translated into protection for women targeted for sexual assault, other than by reference to evidence of attempts by gang members to avoid detection by changing their style and appearance. [18] The extensive evidence cited by the Board attests to the overwhelming nature of the gang problem in Honduras. That evidence, characterized by counsel as “bleak, dire, endemic and pervasive”, supports Ms. Varela’s position that adequate state protection is not forthcoming for women targeted by gang members for sexual assault. Honduras’ need to approach the international community for support in addressing its problems, relied upon by the Board as evidence of the measures being taken, bolsters Ms. Varela’s contention that Honduras cannot provide such protection adequately itself. [19] To the extent that the Board based its findings on the fact that Honduras is a functioning democracy, it also failed to consider the evidence regarding the situation in the months following Ms. Varela’s attack. Honduras was in a situation of political tension culminating in a military coup in June of 2009. While the Board could have considered whether a change in circumstances had occurred making state protection once again available – Honduras may have rebounded since its elections in November of 2009, for instance – it did not.

In concluding that Dustin likely would be afforded adequate state protection in Belize, the Board appeared to place significant weight on the fact that he and his father had never tested state protection in Belize. However, this finding completely ignored the fact that Dustin was never in any position, while he lived in Belize, to test the adequacy of state protection. He was only three years old when his parents left Belize to come to Canada. It is not immediately apparent how anyone that age could ever personally test the adequacy of state protection. [19] The Board also relied on the following findings in reaching its conclusion with respect to the adequacy of state protection: i. Belize is a functioning democracy with democratic institutions; ii. Although there are reports of inadequate police resources, excessive force and corruption in Belize, the evidence before the Board did not “warrant a finding of a wholesale failure of law enforcement,” such as to place in question “the adequacy of the entire nation state protection mechanisms” or the ability and willingness of authorities to assist the Applicants; iii. There are no reported cases of police impunity. Police have been charged and prosecuted with crimes, including sexual assault, corruption, violence and other abuse; iv. Family violence is prohibited by a law which includes penalties such as imprisonment. The law also enables the family court to issue protection orders against accused offenders, and authorities are empowered to remove children from abusive home environments. In addition, certain government programs have been established specifically to address children’s issues and to coordinate programs for children who are victims of domestic violence; v. Although one source has reported that approximately 50% of neglect cases are withdrawn or not prosecuted, another source has reported that victims or their families are often reluctant to press charges; vi. Concerns about lax investigation are insufficient to undermine the presumption of state protection and do not represent clear and convincing proof of the state’s inability to protect Dustin and Peter; and vii. Local failures to provide effective policing do not amount to a lack of state protection. [20] Based on the foregoing pro forma analysis, the Board concluded that “there is state protection in Belize and there is no serious possibility of persecution or, on balance, a risk of other type of personalized harm if [Dustin] returned to Belize.” [21] In reaching this conclusion, the Board only gave very limited consideration to Dustin’s particular circumstances. Specifically, after stating that it was not persuaded that the police would fail to respond should he require their protection, the Board observed that “production of the transfer of guardianship documents showing [the legal guardianship of his aunt and uncle] could resolve any question of kidnapping [of Dustin by Peter] and do [sic] not illustrate that the police would fail to protect [him from] … child abuse.” [22] The only other consideration given to Dustin’s particular circumstances was when the Board recognized that: (i) he falls short in development areas by Canadian standards; (ii) he may not have access to certain “supports that he requires as assessed by his psychologists or social workers in Canada;” and (iii) he “will enjoy a better quality of life in Canada, receive better social support and will be better loved and cared for here.” [23] I am satisfied that the foregoing analysis fell significantly short of the type of contextualized analysis that was required in the particular circumstances of this case.

The Court set aside a finding of state protection: [30] As I see it, Ms. Gonzalez Palomino presented clear and convincing evidence of a lack of state protection. Indeed, the Board accepted most of it. However, it found that she had, nonetheless, failed to rebut the presumption of state protection because she could have done more. In my view, that conclusion did not take account of the evidence before the Board showing the difficulties of obtaining state protection in Mexico and the apparent inefficacy of well-intentioned statutes whose purposes remain to be realized. The Board cannot conclude that a claimant has failed to meet his or her burden of proof without considering documentary evidence that corroborates the claimant’s account of events.

The Court set aside a decision refusing a claim based on the availability of state protection: [9] Still, in the circumstances of this case, the Board’s errors caused it to overlook evidence particular to Ciudad Juarez and the capacity of Mexican authorities to provide protection to citizens targeted by the Juarez Cartel for reprisals. Instead, the Board relied primarily on evidence of a general nature about state institutions in Mexico and examples of sincere efforts on Mexico’s part to deal with its crime and corruption difficulties. There was only one example of state action relevant to Mr. Luna’s circumstances – the reaction to his anonymous phone call. But that evidence was of little assistance in deciding whether state officials could offer protection to a person suspected by a drug cartel of being an informant. [10] Accordingly, the Board’s analysis did not address Mr. Luna’s particular circumstances – where he lived, whom he feared or what state apparatus was available to him in that location against that particular agent of persecution. As such, the Board failed to refer to the evidence before it that was relevant to those subjects. As a result, the Board failed to discharge its obligation to address the specific claim before it: Medina v Canada (Minister of Citizenship and Immigration), 2008 FC 728; Moreno v Canada (Minister of Citizenship and Immigration), 2010 FC 993; Velasquez v Canada (Minister of Citizenship and Immigration), 2010 FC 1201.

The court set aside a decision based on generalized risk holding that the tribunal erred in failing to consider the specific risk faced by the Applicant:In the case at bar, the Board did not fulfill its duty to fully analyse and appreciate the personalized risk faced by the applicants. Just as Justice Noël held, the applicants were not targeted in the same manner as any other person in Haiti. In the case of the applicants, reprisal was sought because the principal applicant, a nurse, had not admitted a patient who later died and the kidnappers sought revenge. Then when the principal applicant reported the kidnapping to the police, the kidnappers again sought revenge. Even after the principal applicant and her two children had left Haiti, the kidnappers continued to seek revenge against the principal applicant’s husband who is also an applicant before the Board. None of this evidence was referred to by the Board in its decision. [28] As I held in Melvin Alonso Cruz Pineda v. Canada (M.C.I.), [2011] FC 81 at paragraph 39 where the Board failed to refer to an expert report that the applicant would now face a heightened threat as compared to the general population, the failure to mention this evidence is a reviewable error.

The Court set aside a decision base don state protection holding that the IRB erred in law

The Court set aside a decision based on state protection holding the tribunal did not consider the evidence and failed to consider the ability of the applicant to seek protection:

The Court set aside a finding that an abused women would be able to access state protection. The tribunal erred in concluding the applicant ought to have gone to the police when she had gone once and protection had been denied and erred in selectively reviewing the documentary evidence:[23] Jurisprudence has questioned what purpose would be served in requiring abused women to return to the police if the first time is not successful: Pereyra Aguilar v Canada (Minister of Citizenship and Immigration), 2010 FC 216, at para. 36. Here, there arises the issue of further harm to the Applicant by her abuser if she tries to report to the police, and it must be addressed.[24] The RPD considered it significant that, after the Applicant left, the Applicant’s mother filed a denunciation about Mr. Garcia with the authorities because of his continued attempts to locate the Applicant by harassing the mother. The RPD fails to make any distinction between the differing circumstances of the Applicant’s mother and the Applicant. The Applicant is the focused target by Mr. Garcia whose abuse and harassment is an indication of his controlling obsession, whereas the mother is not. [25] While deference is to be given to the RPD in its findings of state protection, the RPD’s analysis of the documentary evidence regarding available state protection is problematic. The RPD chose to assign “a greater probative value to the documentary evidence than to the claimant’s opinion with respect to the adequacy of state protection.” It is an error to discount the Applicant’s evidence merely because of her interest in the outcome; the RPD must give reasons for discounting her evidence: Torres Sanchez v Canada (Minister of Citizenship and Immigration), 2008 FC 1336 at para. 56. [26] More significantly, the RPD must address contradictory evidence that state protection is not adequate: Toriz Gilvaja v Canada (Minister of Citizenship and Immigration), 2009 FC 598 at para. 38. This is especially important in light of the Applicant’s evidence the police had apparently leaked to Mr. Garcia information about her attempt to report him. While the RPD did acknowledge there was contradictory evidence, it did not explain why it chose to discount contradictory evidence, included in an IRB’s Research Directorate and a 50-page Amnesty International report.