Inadequacy of State Protection

[Note: This post ties in very closely with my post on refugees originating from democracies, which can be found here.]

I have previously discussed the issue of refugees who come from countries where the state is not the persecutor. Rather, it is a quasi-governmental authority or private actors that are the cause of the refugee’s fears. In such cases, the issue turns to one of the adequacy of state protection.

Ward v. Canada

The leading decision on the issue of state protection in the context of refugee and pre-removal risk assessment decisions is the Supreme Court of Canada decision Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689. There, the Supreme Court of Canada held that a state’s inability to protect its citizens is the crucial element in determining whether a claimant’s fear of persecution is well-founded as it determines the reasonableness of his or her unwillingness to seek the protection of his or her state of nationality.

Specifically, the Court noted that:

Having established that the claimant has a fear, the Board is, in my view, entitled to presume that persecution will be likely, and the fear well-founded, if there is an absence of state protection. The presumption goes to the heart of the inquiry, which is whether there is a likelihood of persecution. But I see nothing wrong with this, if the Board is satisfied that there is a legitimate fear, and an established inability of the state to assuage those fears through effective protection

The Court went on to note that:

Only situations in which state protection “might reasonably have been forthcoming”, will the claimant’s failure to approach the state for protection defeat his claim. Put another way, 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. [My emphasis]

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.

Ward involved a somewhat unique case where the refugee claimant’s home state conceded that it could not protect the claimant. However, for cases where such an admission was not forthcoming, the Supreme Court noted that:

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.

Is there a Subjective Fear of Persecution?

Before the Refugee Protection Division can engage in a state protection analysis, it must first analyze whether a refugee claimant has a subjective fear, and what that fear is.  Thus, in Cobian Flores v. Canada (Citizenship and Immigration), 2010 FC 503, the Federal Court noted that:

[S]ave in exceptional cases, the analysis of the availability of state protection should not be carried out without first establishing the existence of a subjective fear of persecution. The panel responsible for questions of fact should therefore analyze the issue of the subjective fear of persecution, or, in other words, should make a finding as to the refugee claimant’s credibility and the plausibility of his or her account, before addressing the objective fear component which includes an analysis of the availability of state protection.

The reason that it is necessary to analyze whether and what the subjective fear of persecution is before analyzing whether there is adequate state protection is because one has to determine exactly what the state is trying to protect an individual from in order to determine whether that protection is adequate.  As noted by the Court in Velasco Moreno v. Canada (Minister of Citizenship and Immigration), 2010 FC 993:

In my view, a negative determination of the Refugee Protection Division which turns on the issue of state protection must be scrutinized with particular care where the member chooses to make no credibility finding concerning the applicant’s allegations of a subjective fear.

However, the judge sitting in judicial review must be satisfied that the applicant’s allegations, usually in the personal information form and the transcript of the refugee hearing, were treated as true by the decision-maker.Only then can a proper review be made of the member’s state protection analysis. The state protection issue should not be a means of avoiding a clear determination

Other Cases Interpreting War

The level of state protection that must be available is “adequate”. (Carillo, 2008 FCA 94)

In Da Souza v. Canada (Citizenship and Immigration), the claimant was a woman from St. Vincent. Her claim was based on her abusive ex-partner. She produced a letter from a police sergeant in St. Vincents. In the letter, this officer noted that Sonia did not ever report incidents to the police. The PRRA officer thus rejected her claim on the basis that the claimant never sought police protection. The Court, however, rejected this decision, noting that the fact that a claimant did not approach the state for protection will not automatically defeat a claim. The Officer was required to analyze whether the state would be able to protect effectively. The Court noted that if it was not objectively unreasonable for the claimant to not seek state protection, then she did not need to go to the authorities.

Where a refugee claimant provides evidence that contradicts the presumption of state protection, then the Refugee Protection Division must consider this evidence.  If it discounts contradictory evidence, then it must explain why (Flores Alcazar v. Canada, 2011 FC 173).  However, the onus remains on the applicant to rebut the presumption of adequate state protection, on a balance of probabilities (Carillo v. Canada, above).

Agencies other than Police

The Federal Court has repeatedly emphasized that the police force is presumed to be the main institution responsible for providing state protection.  Shelters, counsellors and hotlines may be of assistance, but they have neither the mandate nor the capacity to provide protection (Aurelien v. Canada, 2013 FC 707).


Overview of PRRA Changes

The purpose of this blog post is to provide an overview of the changes to Pre-Removal Risk Assessments (“PRRAs“) resulting from Bill C-31 which are now in effect.  A PRRA is a paper application in which individuals can submit that they would be at risk of persecution, risk to life, or risk of cruel and unusual treatment or punishment if returned to their countries of origin.  For most applicants, a positive determination results in the granting of refugee protection and the opportunity to apply for permanent residence as a protected person.  Bill C-31, the Protecting Canada’s Immigration System Act, introduced several restrictions on the ability of people to apply for PRRA.

One Year Bar

A person may not apply for a PRRA if less than 12 months have passed since the Immigration and Refugee Board (“IRB“) rejected their refugee claim, or determined the claim to be abandoned or withdrawn.

A person may also no longer apply for a PRRA if less than 12 months have passed since Citizenship and Immigration Canada (“CIC“) rejected the individuals previous PRRA application, or determined it to be withdrawn or abandoned.

The above bars apply retroactively to PRRAs currently being processed.

Applicants from certain countries are exempted from the one year bar.  These countries include the Central African Republic, Egypt, Guinea-Bissau, Libya, Mali, Somalia, Sudan, and Syria.  Nationals from these countries are exempt from the 12-month bar only if their IRB or PRRA decision (rejected, abandoned or withdrawn) was rendered between August 15, 2011 and August 14, 2012.  There are no exemptions to the 12-month bar for cases decided by the IRB or CIC from August 15, 2012, onward.

Designated Countries Of Origin

Rejected refugee claimants from a Designated Country of Origin are not eligible to apply for PRRA for 36 months after the date of their final decision at the IRB.  This change applies only to PRRAs submitted after December 15, 2012.

Vacation of a Refugee Claim, Articles E and F

The above 12 and 36 month PRRA bars do not apply to individuals whose refugee claim has been vacated or was rejected on the basis of section E or F of Article 1 of the Refugee Convention.

(A refugee claim may be vacated if the IRB, on an application by the government, determines that a positive refugee decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts.  Article 1E provides that an individual cannot obtain refugee status if they have taken residency in a third country and have the rights and obligations which are attached to the possession of nationality of that country.  Article 1F provides that an individual cannot be a refugee if the person has committed a serious non-political crime outside of the country in which the person is claiming refugee status.)

Consequently, such individuals will be able to make an application for a PRRA and will not be subject to the 12- or 36-month bar.

Serious Criminality and PRRA

PRRA applicants who have been determined to be inadmissible to Canada on grounds of serious criminality whose applications are approved will not receive protected person status.

Previously, protected person status would only be denied if the individual was punished in Canada by a term of imprisonment of at least two years.  Now, PRRA applicants who are inadmissible due to an in-Canada conviction punishable by at least 10 years imprisonment will not receive protected person status.  Instead, their removal order will simply be stayed.

PRRA applicants who are inadmissible due to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence punishable by at least 10 years imprisonment will continue to receive only a stay of removal if the PRRA is approved.

In each of the above cases the risk factors that applicants may claim in a PRRA have been broadened.


Refugees, Democracies, and State Protection

People are often dismissive when they hear of refugee claimants arriving with stories of persecution at the hands of militias or gangs. This especially appears to be the case when the refugee claimants originate from a democratic country. Why, they ask, do these people not simply go to the police in their respective home countries?
Continue reading →


When Will a Hearing be Necessary at a PRRA Review

On August 4, 2010, the Federal Court released its decision in Sayed v. Canada (Citizenship and Immigration), 2010 FC 796 (“Sayed“) The decision involved a discussion of many Pre-Removal Risk Assessment (“PRRA“) issues, including when a PRRA officer will be required to call a hearing.

The PRRA is based on the principle of non-refoulement, and provides that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life, or risk of cruel and unusual treatment or punishment.  Approved applications generally result in the same refugee protection afforded to persons whose refugee claims are approved by the Immigration and Refugee Board.

PRRA is generally carried out through a paper review process. However, officers have the discretion to hold an oral hearing in certain cases, as outlined in s. 167 of the Regulations. This section states that:

Hearing — prescribed factors

167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:

(a) whether there is evidence that raises a serious issue of the applicant’s credibility and is related to the factors set out in sections 96 and 97 of the Act;

(b) whether the evidence is central to the decision with respect to the application for protection; and

(c) whether the evidence, if accepted, would justify allowing the application for protection.

In Sayed, Justice Zinn noted that in the context of PRRA applications following negative refugee determinations, the test of whether to hold an oral interview is that where the testimony of the applicant, if believed, would adequately address the determinative issues raised by the Board in rejecting the applicant’s refugee claim, then an officer must convoke an oral review to determine the credibility of the evidence (unless the officer accepts the evidence on its face).

It follows from this that if an applicant’s PRRA affidavit does not address all of the determinative issues found by the Board, then the Applicant will not have a right to an oral hearing.

It is therefore important for claimants to ensure that their PRRA affidavit does not simply reiterate the allegations made during the refugee hearing. Rather, they must present further evidence and testimony to address the issues that caused their refugee claim to fail.


US War Deserters – Immigrating to Canada

In a decision that has received much media attention, the Federal Court of Appeal (“FCA“) on July 6, 2010, released its decision in Hinzman v. Canada (Citizenship and Immigration), 2010 FCA 177 (“Hinzman“)

Hinzman involved an American soldier who for moral and religious beliefs was against “all participation in war”.  In 2004, upon learning that his unit would be deployed to Iraq, Mr. Hinzman fled the United States for Canada. He has been AWOL from the US army since his arrival in Canada.  He originally claimed refugee status, a claim which was unsuccessful.

He then filed a Pre-Removal Risk Assessment (“PRRA“), and an application for permanent residence based on Humanitarian & Compassionate (“H&C“) grounds.

A Citizenship and Immigration Canada officer (the “Officer“) rejected the PRRA.  She found that:

[t]he possibility of prosecution under a law of general application is not, in and of itself, sufficient evidence that an applicant has a well-founded fear of persecution. The PRRA application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

The appellant did not seek leave to apply for judicial review of the PRRA decision.

The Officer also rejected the H&C application.  The appellant sought leave to appeal of this decision.  The Federal Court upheld the Appellant’s decision. However, it certified the following question:

Can punishment under a law of general application for desertion, when the desertion was motivated by a sincere an deeply held moral, political and/or religious objection to a particular war, amount to unusual, undeserved or disproportionate hardship in the context of an application for permanent residence on humanitarian and compassionate grounds?

PRRA and H&C Applications Require Different Tests

The FCA answered the question in the affirmative. It is important to note that it did not rule that H&C would always be appropriate for war deserters, nor did it state that Mr. Hinzman’s H&C application should be successful. Rather, the FCA found that punishment for desertion, where the desertion was motivated by a deeply held moral, political and/or religious objection, could amount to unusual, undeserved, or disproportionate hardship. The Court thus remitted the matter to a different Officer with the requirement that the new officer reevaluate the application using this criteria.

This judgment is the latest in a series of decisions reminding Immigration Officers that PRRA and H&C applications require different tests.

The Immigration and Refugee Protection Act requires that PRRA officers give consideration to any new, credible, relevant, and material evidence of facts that might have affected the outcome of an appellant’s refugee claim hearing had this evidence been presented, and to assess the risk to the individual if removed.

H&C applications, meanwhile, require officers to regard public policy considerations and humanitarian grounds, including family-related interests.

The Officer did not appear to consider this, instead noting with regards to the H&C application that:

It is important to note that the possibility of prosecution for a law of general application is not, in and of itself, suffiicent evidence that an applicant will face unusual and undeserved, or disporporitionate hardship. The H&C application is not an avenue to circumvent lawful and legitimate prosecutions commenced by a democratic country.

As the FCA noted, this standard of analysis is generally used for PRRA applications. It is not the test for H&C applications.

Once again, the FCA stressed that it was not altering the discretion of officers, nor that it was giving Mr. Hinzman a right to a particular outcome. Rather, it found that the  Officer had to apply the appropriate test.


PRRA Officer Did not Consider Important Country Report

On June 7, the Federal Court released its decision in Ariyaratnam v. Canada (Citizenship and Immigration), 2010 FC 608 (“Ariyaratnam“) The case involved a 28 year old from Sri Lanka whose Pre-Removal Risk Assessment (“PRRA“) and Humanitarian & Compassionate applications were refused.

The appellant argued in Federal Court that the assessing officer (the “Officer“) had a duty to consider a UNHCR report that would have bolstered the applicant’s claim (the “Report“). The Report was released a few weeks before the Officer released her decision, and the Officer did not consider it.

Continue reading “PRRA Officer Did not Consider Important Country Report”


Evidence that Can be Used at a PRRA

Pre-Removal Risk Assessment application by a failed refugee claimant is not an appeal or reconsideration of the decision of the Refugee Protection Division to the failed refugee claim.

Section 113(a) of the Immigration and Refugee Protection Act provides that an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the failed refugee claimant could not reasonably have been expected in the circumstances of the refugee claim to have presented.

Accordingly, as the Federal Court of Appeal noted in Raza, Pre-Removal Risk Assessment Officers must respect the negative refugee determination unless there is new evidence of facts that might have affected the outcome of the Refugee Protection Division hearing.

There are numerous factors that PRRA officers must consider when determining whether to admit new evidence.  These include:

  1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered.
  2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered.
  3. Newness: Is the evidence new in the sense that it is capable of:
    1. proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the Refugee Protection Division, or
    2. proving a fact that was unknown to the refugee claimant at the time of the Refugee Protection Division hearing, or
    3. contradicting a finding of fact by the Refugee Protection Division (including a credibility finding)? If not, the evidence need not be considered.
  4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the Refugee Protection Division? If not, the evidence need not be considered.
  5. Express statutory conditions:
    1. If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the Refugee Protection Division hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the Refugee Protection Division hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the Refugee Protection Division hearing? If not, the evidence need not be considered.
    2. If the evidence is capable of proving an event that occurred or circumstances that arose after the Refugee Protection Division hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material).

PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds above.