Many refugee claimants are not based on situations where the state is the agent of persecution. Rather, the source of risk is a quasi-governmental authority or private actors. 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 Supreme 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.
In other words, there is a presumption that the state can protect its citizens. In order to rebut this presumption, a person seeking protection must show “clear and convincing evidence.”
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
Effort vs. Results
In Galogaza v. Canada (Citizenship and Immigration), 2015 FC 407, the Federal Court noted that:
A state’s efforts, on their own, do not establish that protection was actually available to the claimant:
[E]vidence of a state’s efforts does not help answer the main question that arises in cases of state protection – that is, looking at the evidence as a whole, including the evidence relating to the state’s capacity to protect its citizens, has the claimant shown that he or she likely faces a reasonable chance of persecution in the country of origin? To answer that question, the Board has to decide whether the evidence relating to the state resources actually available to the applicants indicated that they would probably not encounter a reasonable chance of persecution if they returned to [their country of origin] (Moczo v Canada (Minister of Citizenship and Immigration), 2013 FC 734, at para 10; Beri v Canada (Minister of Citizenship and Immigration), 2013 FC 854, at para 46).
In other words, whether state protection is adequate depends on its operational effectiveness, not the best efforts or intentions of the state. Indeed, a Refugee Protection Division decision will be unreasonable if the tribunal only focuses on best intentions. In Mata v. Canada (Immigration, Refugees and Citizenship), 2017 FC 1007,for example, the Federal Court held:
While the Officer correctly states the general principle for state protection (adequate state protection) the decision does not demonstrate that the Officer actually considered the operational adequacy of state protection efforts. For example, the Officer notes that “Hungary is making serious efforts to address the problems that Roma individuals face in that country.” In absence of any analysis regarding the adequacy of those “serious efforts,” the Officer failed to apply the correct test for state protection.
Democracies
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?
The answer is that sometimes the police are either ineffective, or, occasionally, the perpetrators of persecution. In such cases, an individual might literally be putting their lives in their hands by approaching the authorities. Canadian refugee law recognizes this catch-22, and has developed numerous principles addressing the issue of state protection.
As articulated by the Federal Court, “requiring a person to seek protection from the state when that person believes he or she is in danger as a result of the actions of someone who is a member of the forces of public order and when the state is both persecutor and accomplice is too stringent a burden of proof for a refugee claimant”: Aguilar Soto v. Canada (Citizenship and Immigration), 2010 FC 1183.
Even if the police are not the alleged source of persecution, but are simply ineffective, then a refugee claimant is not obliged to seek counseling, legal advice, or assistance from human rights organizations: Balogh v. Canada (Minister of Citizenship and Immigration) (2002), 22 Imm. L.R. (3d) 93.
Importantly, even in the case of democracies that are generally respectful of human rights within their borders, each case concerning state protection brought before the Immigration and Refugee Board must be examined individually and on its own merits: Arellano v. Canada (Minister of Citizenship and Immigration), 2006 FC 1265.
The question is not whether the state protection is perfectly effective. However, the mere willingness of a state to ensure the protection of its citizens is not sufficient in itself to establish its ability. Protection must have a certain degree of effectiveness. The presumption of state ability is therefore rebuttable, even when dealing with a democratic state.
In Canada (Citizenship and Immigration) v. Bellamy, 2024 FC 166, Madam Justice Pallotta summarized the law on adequacy of state protection as being:
[32] The law is well settled that, in the absence of a complete breakdown of state apparatus, it should be assumed that states are capable of protecting their own citizens: Ward at 724-725; Miller at para 63. To rebut the presumption of state protection, there must be clear and convincing evidence of the state’s inability to provide adequate protection: Ward, ibid; see also Flores Carrillo at paras 25-26. This requires more than showing that state protection is not perfect or it is not always effective; refugee claims were never meant to allow claimants to seek out better protection than that from which they benefit already: Ward at 725-726; Burai v Canada (Citizenship and Immigration), 2020 FC 966 at para 46, citing Canada (Minister of Employment and Immigration) v Villafranca, 1992 CanLII 8569 (FCA), [1992] FCJ No 1189 (FCA) at para 7 [Villafranca].
[33] Refugee claimants attempting to rebut the presumption that the US is capable of protecting them have a “heavy burden”: Hinzman at para 46; Miller at para 64. They must demonstrate they took all objectively reasonable efforts, without success, to exhaust all courses of action reasonably available to them: Ruszo v Canada (Citizenship and Immigration), 2013 FC 1004 at para 32 [Ruszo], citing Hinzman and Ward, among other cases.