6.1. INTRODUCTION - GENERAL PRINCIPLES
The issue of state protection was extensively canvassed by the Supreme Court of Canada in Ward.Note 1 The context for the discussion of this topic is the requirement in the definition of Convention refugee that the claimant be unable, or by reason of his or her fear of persecution, unwilling to avail him or herself of the protection of the country of nationality (citizenship). As indicated below, the state's ability to protect the claimant is a crucial element in determining whether the fear of persecution is well founded, and as such, is not an independent element of the definition. The issue of state protection goes to the objective portion of the test of fear of persecution and it is not enough to simply assert a subjective belief that protection is not available.Note 2
State protection must be considered in context. The contextual approached was explained by the Court in Gonzalez TorresNote 3 as follows:
…state protection cannot be determined in a vacuum. When undertaking a contextual approach in determining whether the refugee claimant has rebutted the presumption of state protection, many factors ought to be considered, including the following:
- The nature of the human rights violation;
- The profile of the alleged human rights abuser;
- The efforts that the victim took to seek protection from authorities;
- The response of the authorities to requests for their assistance, and
- The available documentary evidence.
6.1.1. Surrogate Protection
The responsibility to provide international protection only becomes engaged when national or state protection is unavailable to the claimant (international protection as a surrogate).Note 4
6.1.2. Multiple Nationalities
In the case of multiple nationalities (citizenship), the claimant is normally expected to make inquiries or applications to ascertain whether or not he or she might avail him or herself of the protection of all the countries of nationality. The claimant need not literally approach the other states for protection unless there is a reasonable expectation that protection will be forthcoming.Note 5
6.1.3. Timing of Analysis
The state's ability to protect, whether one is speaking of the claimant being "unable" or "unwilling", must be considered at the stage of the analysis when one is examining whether the claimant's fear is well founded.
… The test is in part objective; if a state is able to protect the claimant, then his or her fear is not, objectively speaking, well-founded …
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.Note 6
A claimant who is not at risk does not need state protection and therefore, the issue need not be addressed.Note 7
6.1.4. Unable or Unwilling - A Blurred Distinction - No Requirement for State Complicity
The Convention refugee definition refers to inability or unwillingness to avail of state protection, however, the distinction between "unable" (physically or literally unable) and "unwilling" (not wanting) has become blurred.Note 8
Whether the claimant is "unwilling" or "unable" to avail him- or herself of the protection of a country of nationality, state complicity in the persecution is irrelevant. The distinction between these two branches of the "Convention refugee" definition resides in the party's precluding resort to state protection: in the case of "inability", protection is denied to the claimant, whereas when the claimant is "unwilling", he or she opts not to approach the state by reasons of his or her fear on an enumerated basis. In either case, the state's involvement, in the persecution is not a necessary consideration. This factor is relevant, rather in the determination of whether a fear of persecution exists.Note 9
There are two presumptions at play in refugee determination:
Presumption 1: If the fear of persecution is credible (the Court uses the word "legitimate")Note 10 and there is an absence of state protection, it is not a great leap "… to presume that persecution will be likely, and the fear well-founded."Note 11
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 fear can be established through the use of such a presumption.Note 12
Presumption 2: Except in situations where the state is in a state of complete breakdown, states must be presumed capable of protecting their citizens. This presumption can be rebutted by "clear and convincing" evidence of the state's inability to protect.Note 13
The danger that [presumption one] will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced.Note 14
In Hinzman,Note 15 the Federal Court of Appeal held that the presumption of state protection described in Ward applies equally to cases where the state is alleged to be the agent of persecution. However, where agents of the state are themselves the source of persecution, the presumption of state protection can be rebutted without exhausting all avenues of recourse in the country.Note 16
In Badran,Note 17 the Court indicated that the "law does not require that the inability to protect be connected to a Convention reason." Conversely, one may argue that even though the source of the persecution is not grounded in a Convention reason, a State's failure to act (protect), if motivated by a Convention ground, can establish the nexus to the definition, i.e., the failure to protect for a Convention reason can in itself amount to persecutory treatment.
6.1.7. Burden and Standard of Proof
The claimant's obligation of presenting "clear and convincing" proof of the state's inability to protect should not be an impossible burden.
… 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.Note 18
The Trial Division in PeraltaNote 19 stated that a claimant is not required to show that he or she has exhausted all avenues of protection. Rather, the claimant has to show that he or she has taken all steps reasonable in the circumstances, taking into account the context of the country of origin in general, the steps taken and the claimant's interactions with the authorities.
The onus of showing the absence of state protection is on the claimant, not the Board.Note 20 This however, does not relieve the RPD of its obligation to provide clear and adequate reasons indicating why the onus was not met.Note 21
In Flores Carrillo,Note 22 the Federal Court of Appeal dealt with the following certified question:
What is meant by the presumption of state protection (as mentioned in [Ward])? Does it impose a particular standard of proof on refugee [claimants] to rebut it, or does it merely impose an obligation to present reliable evidence of a lack of state protection? If it imposes a particular standard of proof, what is it?
The Court answered the question as follows:
A refugee who claims that the state protection is inadequate or non-existent bears the evidentiary burden of adducing evidence to that effect and the legal burden of persuading the trier of fact that his or her claim in this respect is founded. The standard of proof applicable is the balance of probabilities and there is no requirement of a higher degree of probability than what that standard usually requires. As for the quality of the evidence required to rebut the presumption of state protection, the presumption is rebutted by clear and convincing evidenceNote 23 that the state protection is inadequate or non-existent.
The Court has cautioned about faulting a sexually molested child with not approaching the state for protection when the parents themselves do not do so.Note 24
6.1.8. Obligation to Approach the State
A claimant is required to approach his or her state for protection in situations in which protection might reasonably be forthcoming.
… 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.Note 25
In other words, the claimant must show that it was reasonable for him or her not to seek state protection. However, a claimant is not required to risk his or her life seeking ineffective protection of a state, merely to demonstrate that ineffectiveness.Note 26
In D'Mello,Note 27 the Court set aside the decision of the CRDD because the panel's analysis was inadequate with respect to the principle in Ward that a claimant should not be required to risk her life seeking ineffective state protection merely to prove the ineffectiveness. In this case,
the [claimant's] fear did not rest on the lack of legislative and procedural framework in India to protect women abused by their husbands or agents of their husbands, but rather on the lack of police support to such women and the difficulty, given the lack of such support, in effectively taking advantage and having recourse to the existing legislative and procedural framework of state protection in India. (At paragraph 13).Note 28
Where agents of the state are themselves the source of persecution, and where the claimant's credibility is not undermined, the presumption of state protection can be rebutted without exhausting every conceivable recourse in the country.Note 29 Also, the Court has noted that it is unreasonable for the RPD to not take into account the fact that a claimant's situation became more serious after a complaint was made.Note 30
6.1.9. Rebutting the Presumption of Protection
Absent an admission by the state that it is unable to protect (as was the case in Ward), a claimant can establish, with "clear and convincing evidence",Note 31 that state protection would not be reasonably forthcoming (thus rebutting the presumption) where:
- there is a complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali;Note 32
- there is evidence "…similarly situated individuals [were] let down by the state protection arrangements…;"Note 33
- there is evidence "…of past personal incidents in which state protection did not materialize."Note 34
The Court refers to the Federal Court of Appeal decision in SatiacumNote 35and quotes with approval the following statement:
In the absence of exceptional circumstances established by the claimant, it seems to me that in a Convention refugee hearing, as in an extradition hearing, Canadian tribunals have to assume a fair and independent judicial process in the foreign country. In the case of a non-democratic State, contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching, for example, the jury selection process in the relevant part of the country, or the independence or fair-mindedness of the judiciary itself.Note 36
In Kadenko,Note 37 which is discussed later in section 6.1.12, the Court of Appeal noted that the burden of proof to establish absence of state protection is "directly proportional to the level of democracy in the state in question …"
In Hinzman,Note 38 the Federal Court of Appeal noted that a claimant coming from a democratic country (like the US) will have a heavy burden when attempting to show that he or she should not have been required to exhaust all of the recourses available domestically before claiming protection elsewhere. However, as noted in Katwaru,Note 39 democracy alone does not guarantee effective state protection. The Board is required to do more than determine whether a country has a democratic political system and must assess the quality of the institutions that provide state protection. Another case that refers to the need for a contextual analysis is Loaiza,Note 40 where the Court noted that the analysis must begin with an assessment of the personal circumstances of the claimant and the degree of the individual risk faced. The Court noted that in some countries there may be only a weak correlation between the existence of a constitutional democracy and a willingness of the state to take effective measures against spousal abuse. See also Leon Davila,Note 41 where the Court noted that the Board must proceed with a fulsome and contextualized analysis of each claimant's particular situation and that it is not enough to state broadly that there are free and general elections, and that legislation has been enacted to ensure basic standards of human rights.
It is incorrect to use the criterion of "basis for protection" based on some comparative analysis with other countries as the legal test for state protection. The Board must address the issues of adequate and effective state protection.Note 42
6.1.10. More Than One Authority in the Country
The Court of Appeal in ZalzaliNote 43 recognized that there may be several established authorities in a country which are each able to provide protection in the part of the country controlled by them.
The "country", the "national government", the "legitimate government", the "nominal government" will probably vary depending on the circumstances and the evidence and it would be presumptuous to attempt to give a general definition. I will simply note here that I do not rule out the possibility that there may be several established authorities in the same country which are each able to provide protection in the part of the territory controlled by them, protection which may be adequate though not necessarily perfect.Note 44
In Chebli-Haj-Hassam,Note 45 the Court of Appeal answered a certified question on this matter as follows:
In the circumstances where there is a legitimate government supported by the forces of another government and there is no difference in interest between the two governments in relation to a refugee claimant, the protection given to the claimant is adequate to establish an internal refuge.
In Choker,Note 46 the Court appears to question the reasonableness of the CRDD conclusion that a Lebanese claimant could and should seek the protection of an invading army (the Court was considering whether the tribunal had applied the law on IFA correctly.)
6.1.11. Adequacy of Protection - Standard
One aspect of protection which was not discussed by the Supreme Court of Canada in Ward is the standard of protection that a country needs to offer its citizens. One standard suggested by the Federal Court of Appeal is "…adequate though not necessarily perfect".Note 47 This standard has been followed and applied in a large number of cases.
In Villafranca,Note 48 the Court of Appeal, considering the claim of a Philippine policeman who feared a terrorist guerrilla group, again suggested that protection need not be perfect:
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 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.Note 49
The "serious efforts" standard alluded to in Villafranca has been followed in a number of cases, see for example Kashif,Note 50 where the Court noted that state protection need not be perfect so long as the state is in effective control and makes serious efforts to protect its citizens.
There are a few cases which take a broad view of protection. For example, in Bobrik,Note 51 Madam Justice Tremblay-Lamer, in considering the claims of a Jewish couple from Russia stated that:
… 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.
Mr. Justice Gibson, in Smirnov,Note 52 stated that in his view, "… [Bobrik] sets too high a standard for state protection…". He further indicated that:
Random assaults such as those suffered by the [claimants], where the assailants are unknown to the victim and there are no independent witnesses are also difficult to effectively investigate and protect against. In all such circumstances, even the most effective, well-resourced and highly motivated police forces will have difficulty providing effective protection. This Court should not impose on other states a standard of "effective" protection that police forces in our own country, regrettably, sometimes only aspire to.
The issue of whether the standard of protection is effectiveness, rather than adequacy, continues to be raised in judicial reviews. While some cases suggest effectiveness is the correct standard, the preponderance of cases follow Villafranca and adopt the adequacy standard.
In James,Note 53 the Court noted that "a finding of adequate protection cannot flow from police assistance to leave the country that is unable to provide adequate protection." Likewise, it is manifestly wrong for the Board to consider police criminality (i.e., the use of unofficial and illegal means to achieve results against criminal elements) as evidence of the effectiveness of state protection. Police corruption is the antithesis of state protection and is only properly considered as evidence of the breakdown of the protective apparatus of state protection.Note 54
In Zhuravlvev,Note 55 Mr. Justice Pelletier reviewed the authorities and drew the following conclusions:
 … when the agent of persecution is not the state, the lack of state protection has to be assessed as a matter of state capacity to provide protection rather than from the perspective of whether the local apparatus provided protection in a given circumstance. Local failures to provide effective policing do not amount to lack of state protection. However, where the evidence, including the documentary evidence situates the individual claimant's experience as part of a broader pattern of state inability or refusal to extend protection, then the absence of state protection is made out. The question of refusal to provide protection should be addressed on the same basis as the inability to provide protection. A local refusal to provide protection is not a state refusal in the absence of evidence of a broader state policy to not extend state protection to the target group … [the] refusal may not be overt; the state organs may justify their failure to act by reference to various factors which, in their view, would make any state action ineffective. It is for the CRDD to assess the bona fides of these assertions in the light of all the evidence.
 …[As regards] the issue of internal flight alternative in relation to state inability or refusal to provide protection, … if state policy restricts a claimant's access to the whole of the state's territory, then the failure to provide local protection can be seen to be as state failure to provide protection and not mere local failure
6.1.12. Source of Protection
Where the state is not the agent of persecution, the availability of state run or funded agencies capable of providing assistance is relevant for determining the existence of state protection.Note 56
The case law has been inconsistent on the question of whether the claimant needs to seek protection from sources other than the state. In Thakur, the Trial Division seems to say that the fact that civil rights groups are able to conduct investigations of alleged abuses is irrelevant to the question of protection.Note 57
A similar point was made in Risak,Note 58 where the Court also considered the claimant's obligation to pursue further legal remedies after initial complaints to the state's authorities fail:
… the question is whether or not it was objectively reasonable to expect the [claimant] to have further sought the protection from the army and the police in Israel after having been so brutally rebuffed by the very authorities from whom citizens expect protection. There is nothing in our jurisprudence to the effect that in such situations the [claimant] has the further burden to seek assistance from human rights organizations or, ultimately, to launch an action in court against the government.
A related question is whether one can say that the state has failed to provide protection where the protection is denied by certain elements of the state, for example, individual police officers.Note 59 In Kadenko,Note 60 the Court of Appeal dealt with the following certified question:
Where there has not been a complete breakdown of the government 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 that State in question is unable or unwilling to protect its nationals?
The Court answered the question 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. …
When the state in question is a democratic state … 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. (at 2-3)
The Trial Division held in a number of decisions that the availability of protection from non-state sources may, nevertheless, be relevant to establishing an objective basis for the claim.Note 61 Other more recent case law on the subject of claimants' obligation to approach state-funded non-governmental agencies for assistance seems to suggest that these agencies are part and parcel of the protection network and that at the very least, their existence and the claimant's willingness to approach them for assistance in obtaining protection is a relevant consideration in the assessment of the claim.Note 62
In Szucs,Note 63 the Court dismissed the judicial review application of the decision of the CRDD with respect to the claim of a Romani claimant from Hungary, and noted that:
 … In determining the availability of state protection, the Board was also entitled to examine all reasonable steps the Applicant had taken in the circumstances to seek protection of his state of origin.
 … The Board found that for more serious and persistent forms of discrimination like eviction from housing, persistent unemployment due to discrimination or other serious harm, there was a network of government and government sponsored organizations throughout Hungary which assist without charge those so threatened.
 The evidence established that the applicant had never tried to seek help from either the Ombudsman, NGO's or through minority self-government. I find that the Board, in requiring the Applicant to exhaust these avenues of protection in addition to police protection, was asking the Applicant to take reasonable steps to ensure his protection.
The adequacy of state protection cannot rest on the subjective fear of the claimant.
 What is crucial to this case is that the Applicant made only two attempts to seek assistance, one of which was to police who had no local jurisdiction to deal with her complaint. She then formed the opinion that no other assistance would be forthcoming. This purely subjective view of the adequacy of Costa Rica state protection is not "direct, relevant and compelling" evidence of the inadequacy of state protection.Note 64
6.2. STATELESS CLAIMANTS
As to whether stateless claimants need to avail themselves of state protection, the UNHCR Handbook, in paragraph 101 states that "…[i]n the case of a stateless refugee, the question of 'availment of protection' of the country of his former habitual residence does not, of course, arise…"
In El Khatib,Note 65 Mr. Justice McKeown agreed with this approach and stated:
… the discussion and conclusions reached in Ward apply only to citizens of a state, and not to stateless people. In my view the distinction between paragraphs 2(1)(a)(i) and 2(1)(a)(ii) of the Act is that the stateless person is not expected to avail himself of state protection when there is no duty on the state to provide such protection.Note 66
However, other Trial Division decisions have taken into account state protection that might be available to the claimant in his country of former habitual residence.Note 67 For example, in NizarNote 68 the Court was of the view that, even though states owe no duty of protection to non-nationals, "it is relevant for a stateless person, who has a country of former habitual residence, to demonstrate that defacto [sic] protection within that state, as a result of being resident there is not likely to exist." The Court reasoned that this was relevant to the well-foundedness of the claimant's fear.
The Federal Court of Appeal in Thabet,Note 69 in the context of discussing whether a stateless claimant who has more than one country of former habitual residence must establish the claim with respect to one, some or all of the countriesNote 70, had this to say about the issue of state protection:
… The definition takes into account the inherent difference between those persons who are nationals of a state, and therefore are owed protection, and those persons who are stateless and without recourse to state protection. Because of this distinction one cannot treat the two groups identically, even though one should seek to be as consistent as possible. (At 33).
… If it is likely that a person would be able to return to a country of former habitual residence where he or she would be safe from persecution, that person is not a refugee. This means that the claimant would bear the burden … of showing on the balance of probabilities that he or she is unable or unwilling to return to any country of former habitual residence. (At 39).
6.3. APPLICATION OF THE LAW TO SPECIFIC SITUATIONSNote 71
In analyzing the situation in Peru (on the basis of the evidence filed in the particular case), the Court of Appeal stated:
Isolated cases of persons having been victimized may not reverse the presumption. A state of profound unrest with ineffective protection for the claimant may, however, have reversed it.Note 72
The protection which is given to ordinary citizens may not be adequate for persons specifically targeted. Although the state is capable of protecting ordinary citizens, it may be incapable of protecting persons specifically targeted, and the latter may therefore have good grounds for fearing persecution.Note 73
The claimant may show that he or she is physically prevented from seeking state protection or that the state is prevented from giving the protection, where, for example, the state refuses to give protection,Note 74 there is no government to turn to,Note 75 or there is ineffective state protection.Note 76
Where the agent of persecution acts on behalf of the state, the appropriate inquiry is under the "unwilling" branch of the definition.
While it may not be necessary to prove state complicity in certain situations, in this instance, the tribunal admitted that the persecuting agents were thugs of the ruling UNP. As such, the determination to be made is squarely within the "unwilling" branch of … the definition. Since the persecuting agent is the state or its actors, the appropriate inquiry is whether the [claimants'] unwillingness to seek the protection of Sri Lanka is based on a well-founded fear of persecution. The Board made a fundamental error when it stated that "it is also not satisfied that the state is either unable or unwilling to offer protection should the female claimant decide to seek such protection." The question is not whether the state would be willing to protect, but whether the applicant is willing to seek the protection of the state. It is the well-foundedness of the [claimant's] perspective regarding the state's actions which is determinative."Note 77
Where the claimant fears the army and the evidence establishes that the army is in control of the entire territory, particularly if the country is small, the claimant may be unable to seek the protection of the state.Note 78
Where there is widespread violence and the state fails to take effective steps to curb it despite repeated promises to do so, it is unreasonable to conclude that a claimant could rely on that state for protection.Note 79
In cases of domestic or sexual violence, where there is evidence that the government is taking steps to protect women, in the absence of evidence to the contrary, it must be presumed that these steps will be effective.Note 80 Whether a request for protection is useless after a rape has occurred is not the issue, but rather whether the state is willing, able and disposed to protect a claimant in the face of such acts if she were to return.Note 81 What is important is to analyze, not merely whether a legislative and procedural framework exists, but also whether the state, through the police and otherwise, was willing to effectively implement any such framework.Note 82
In deciding whether a claimant can count on the protection of the state, one must consider not only the state's ability to protect, but also its willingness. While the Ghanian government had sometimes shown an intention to make female circumcision illegal, it was still tolerating the practice.Note 83 On the other hand, in a case where the claimant feared ritual murder in Ghana, the Court noted that that practice was officially condemned by the government and that the claimant never sought the protection of the authorities nor showed that they had failed or refused to protect him.Note 84
In situations involving sectarian violence, the police may sometimes choose to offer only a passive response i.e., advise a claimant to refrain from lodging a complaint as that could ignite the situation even further. In Hussain,Note 85 in considering a claim from Pakistan, the Court noted that "…police intervention, in certain circumstances, can be counterproductive. Police authorities have to make choices, taking account of priorities, tactics and community relations. They may sometimes reasonably conclude that the better course is for them to stay out of certain events."