IMM‑822‑06
2007 FC 320
Maria Del Rosario Flores Carrillo (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Flores Carrillo v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, O’Reilly J.—Toronto, November 15, 2006; Ottawa, March 26, 2007.
Citizenship and Immigration — Status in Canada — Convention Refugees — Judicial review of Immigration and Refugee Board’s refusal of refugee application on basis not showing unavailability of state protection within preponderance of probability — Presumption of state protection not imposing higher burden of proof on claimants where state protection at issue — Simply requiring reliable evidence be tendered — Statement by S.C.C. in Canada (Attorney General) v. Ward “clear, convincing” evidence required to confirm state’s inability to protect describing kind of evidence capable of satisfying well‑founded fear of persecution, not standard of proof — Board applying too high burden of proof herein — Once applicant rebutting presumption of state protection, Board must analyse relevant evidence to determine whether fear of persecution well founded — Application allowed.
This was an application for judicial review of a decision by the Immigration and Refugee Board dismissing the applicant’s refugee claim because she had failed to show, within the preponderance of probability category, that state protection was unavailable to her in Mexico. The Board relied on Xue v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 229 (F.C.T.D.), wherein it was held that refugee claimants must satisfy, “for purposes of rebutting a presumption of state protection, the burden of a higher degree of probability commensurate with the clear and convincing requirement in Ward [Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689].”
Held, the application should be allowed.
A refugee claimant has the burden of establishing that he or she actually fears persecution and that this fear is well founded. Such a fear is established by showing that there is a reasonable chance that the claimant will be persecuted if returned to his or her country of nationality. Where state protection is available, a fear of persecution will not be well founded, and if state protection is unavailable, a person’s fear of persecution will be well founded. In most situations, decision makers are entitled to presume that states are able to protect their citizens (see Ward). However, this presumption does not mean that there is a higher burden of proof on claimants in cases involving the question of state protection. It simply means that in those cases, claimants must tender reliable evidence on that question. This is an evidentiary burden, not a standard of proof, and the evidence must be looked at in the context of the civil and judicial institutions of the state in question. The S.C.C. said in Ward that claimants must provide "clear and convincing confirmation of a state’s inability to protect." These words do not erect an elevated standard of proof; they simply describe the kind of evidence that would be capable of satisfying a well‑founded fear of persecution.
The burden of proof imposed by the Board on the applicant was too high. A claimant can rebut the presumption of state protection by providing reliable evidence of a lack of state protection. The Board is then required to analyse the relevant evidence and determine whether this lack of protection gives rise to a reasonable chance of persecution, which it failed to do in this case.
statutes and regulations judicially
considered
Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 96(a).
United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6.
cases judicially considered
considered:
Xue v. Canada (Minister of Citizenship and Immigration) (2000), 195 F.T.R. 229; 10 Imm. L.R. (3d) 301 (F.C.T.D.); Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; (1993), 103 D.L.R. (4th) 1; 20 Imm. L.R. (2d) 85; 153 N.R. 321; Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3; (2000), 187 F.T.R. 110 (T.D.); Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680; (1989), 57 D.L.R. (4th) 153 (C.A.); Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.); Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100; (2005), 254 D.L.R. (4th) 200; 28 Admin. L.R. (4th) 161; 197 C.C.C. (3d) 233; 30 C.R. (6th) 39; 47 Imm. L.R. (3d) 16; 335 N.R. 229; 2005 SCC 40; Charkaoui v. Canada (Minister of Citizenship and Immigration), [2007] 1 S.C.R. 350; (2007), 276 D.L.R. (4th) 594; 44 C.R. (6th) 1; 59 Imm. L.R. (3d) 1; 358 N.R. 1; 2007 SCC 9.
referred to:
Li v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 239; (2005), 249 D.L.R. (4th) 306; 41 Imm. L.R. (3d) 157; 329 N.R. 346; 2005 FCA 1; Canada (Minister of Employment and Immigration) v. Villafranca (1992), 99 D.L.R. (4th) 334; 150 N.R. 232 (F.C.A.); Kadenko v. Canada (Minister of Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532; 206 N.R. 272 (F.C.A.); Alam v. Canada (Minister of Citizenship and Immigration) (2005), 41 Imm. L.R. (3d) 263; 2005 FC 4.
authors cited
Brown, Kenneth S., ed. McCormick on Evidence, 6th ed. St. Paul, Minn.: Thomson/West, 2006.
Gorlick, Brian. "Common Burdens and Standards: Legal Elements in Assessing Claims to Refugee Status" (October 2002), online: United Nations High Commissioner for Refugees (UNHCR) <http://www. unhcr.org /research/RESEARCH/ 3db7c5a94.pdf>.
Macklin, Audrey. “Refugee Women and the Imperative of Categories” (1995), 17 Hum. Rts. Q. 213.
Office of the United Nations High Commissioner for Refugees. “Note on Burden and Standard of Proof in Refugee Claims” (16 December 1998), online: Refugee Law Reader <http://www.refugeelawreader. org/294.pdf>.
APPLICATION for judicial review of the Immigration and Refugee Board’s decision (Carrillo v. Canada (Minister of Citizenship and Immigration), [2006] R.P.D.D. No. 27 (QL)) dismissing the applicant’s refugee claim on the basis that she had failed to show that state protection was unavailable. Application allowed.
appearances:
J. Byron M. Thomas for applicant.
Martin E. Anderson for respondent.
solicitors of record:
J. Byron M. Thomas, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment and judgment rendered by
[1]O’Reilly J.: Ms. Maria Flores Carrillo claims that she is afraid of being murdered by her former common-law spouse in Mexico. She says that she tried to get help from Mexican police, but that her efforts only made things worse. Her spouse found out that she had made a complaint to police and beat her severely. His brother was a police officer.
[2]Ms. Flores Carrillo sought refugee protection in Canada in 2004. A panel of the Immigration and Refugee Board dismissed her claim because it doubted her version of events and concluded that she had failed to show that state protection was unavailable to her in Mexico [[2006] R.P.D.D. No. 27 (QL)]. Ms. Flores Carrillo argues that the Board erred in its treatment of her evidence and in its analysis of the issue of state protection. She asks for a new hearing.
[3]I agree that the Board erred and will allow this application for judicial review.
I. Issues
[4]Given my conclusion that the Board erred in law in its analysis of the issue of state protection, I need not address the credibility issue.
II. Analysis
(a) The Board’s decision
[5]The Board noted that Mexico is a democracy and, therefore, can be presumed to provide protection to its citizens. Further, Mexico has put in place various measures to deal with domestic violence—legislation, law enforcement, legal services, shelters for abused women, and health services. The Board found that Ms. Flores Carrillo had not made a determined effort to obtain state protection, having only approached the police once during four years of abuse.
[6]The Board [at paragraph 16] went on to conclude on the evidence before it that Ms. Flores Carrillo had not established that, “within the preponderance of probability category, the state of Mexico would not be reasonably forthcoming with serious efforts to protect the claimant if she was to return to Mexico and approach the state for protection.” It relied on the decision of Justice Marshall Rothstein (sitting as applications Judge) in Xue v. Canada (Minister of Citizenship and Immigration) (2006), 195 F.T.R. 229 (F.C.T.D.), at paragraph 12, in which he held that refugee claimants must satisfy, “for purposes of rebutting a presumption of state protection, the burden of a higher degree of probability commensurate with the clear and convincing requirement in Ward” (citing Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689).
[7]Ms. Flores Carrillo argues that the Board erred in its approach to the issue of state protection and, as a result, failed to analyse the documentary evidence before it suggesting that state protection for victims of domestic violence is seriously limited in Mexico.
[8]The respondent argues that the Board properly applied the presumption of state protection, and suggests that to impose on the Board an obligation to analyse the evidence in greater detail would have the effect of watering down that presumption and defeating the spirit of the Ward decision.
[9]To address these arguments, I must go back to first principles.
(b) The law of state protection
[10]State protection is an issue that arises from the very definition of a refugee. A refugee is a person who has “a well-founded fear of persecution” and is “unable or, by reason of that fear, unwilling” to obtain protection from their country of nationality (paragraph 96(a), Immigration and Refugee Protection Act, S.C. 2001, c. 27—see Annex A). The definition contains both subjective and objective elements: the claimant must actually fear persecution and that fear must be well founded.
[11]The issue of state protection arises within the objective branch of the definition of a refugee. Simply put, a person’s fear of persecution is not well founded if state protection is available. The contrary is also true—a person’s fear of persecution is well founded if state protection is unavailable (see Ward, above at page 726). Further, the definition of a refugee goes on to refer explicitly to the person’s inability or unwillingness, out of fear, to secure state protection. Accordingly, the issue of state protection can arise in more than one way but, practically speaking, it usually comes up in the consideration of the well-foundedness of a claim (Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 (T.D.), at paragraph 18).
[12]The question of state protection generally arises only in cases where the person alleges persecution by persons who are not state agents. In those cases where the person claims persecution by the state itself, it can usually be assumed that no state protection is available (Zhuravlvev, above, at paragraph 19).
[13]The burden of proof lies on claimants to show that they meet the definition of a refugee. To do so, they must prove that they actually fear persecution and that their fear is “well founded.” To establish a well-founded fear, refugee claimants must show that there is a “reasonable chance,” a “serious possibility” or “more than a mere possibility” that they will be persecuted if returned to their country of nationality (Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.)). (By contrast, a person who claims to be in danger of being tortured, killed or subjected to cruel and unusual treatment must establish his or her claim on the balance of probabilities: Li v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 239 (F.C.A.).) In respect of particular underlying facts, the claimant shoulders a burden of proof on the balance of probabilities (Adjei, above, at page 682).
[14]In most situations, decision makers are entitled to presume that states are able to protect their citizens (Ward, above). Justice La Forest, in Ward, stated for the Court: “Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens” (at page 725). The exception is where there has been a complete breakdown of a state’s apparatus (Canada (Minister of Employment and Immigration) v. Villafranca (1992), 99 D.L.R. (4th) 334 (F.C.A.)).
[15]However, from my reading of the cases, the concept of the “presumption of state protection” does not mean that there is a higher burden of proof on claimants in cases involving the question of state protection. It simply means that, in those cases, claimants must tender reliable evidence on the point or risk failing to meet the definition of a refugee. In other words, the presumption is not a special hurdle that refugee claimants must overcome where the issue of state protection arises—rather, it simply establishes a starting point for analysing the well-foundedness of a claim.
[16]The presumption that Justice La Forest had in mind was clearly a legal presumption, not a factual one. There was no underlying fact, proof of which would give rise to the presumption of state protection. Rather, he stated a rule of law, similar to the presumption of innocence in criminal cases. This raises the question, which Justice Rothstein sought to answer in Xue, above, of what burden of proof falls on refugee claimants to rebut that presumption. In criminal matters, the burden on the Crown is to supply proof of guilt beyond a reasonable doubt. What burden falls on refugee claimants to rebut the presumption of state protection?
[17]In my view, Justice La Forest contemplated a burden merely to adduce reliable evidence on the point. It is important to note that Justice La Forest referred to the presumption of state protection within his discussion of the kind of evidence claimants might present to satisfy the definition of a refugee in those cases where it was an issue (i.e. where claimants alleged persecution on the part of persons not associated with the state). He said that claimants must provide “some evidence” [emphasis added] of a lack of protection—in other words, merely an evidentiary burden. He never mentions any particular standard of proof, such as a balance of probabilities. However, he gave examples of where the burden would be met: “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” (at pages 724-725). Claimants would not have to provide that evidence where it was clear that the state’s apparatus had completely broken down. In other cases, “it should be assumed that the state is capable of protecting a claimant” (at page 725—emphasis added).
[18]In the paragraph following the statements set out above, Justice La Forest states that “this presumption increases the burden on the claimant” (at page 726). Again, however, one must look at that statement in its context. Justice La Forest had just referred to a case in which a fugitive from the United States sought refugee protection in Canada on the grounds that he feared persecution within the American prison system (Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.)). There, the Federal Court of Appeal had held that the United States should be presumed to treat its prisoners fairly. It said, at page 176:
In the absence of exceptional circumstances established by the claimant, it seems to me that in a Convention refugee 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 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.
[19]In my view, when Justice La Forest noted that the presumption of state protection increased the burden on claimants, he was merely referring to the reality that a claimant would have a difficult time showing a lack of state protection in a country that had established elaborate civil and judicial institutions, such as the United States, as compared to countries where the state apparatus is more rudimentary. He was not, as I read his decision, establishing a special standard of proof in relation to state protection.
[20]This interpretation is borne out by subsequent case law in which it has been made clear that a refugee claimant’s evidence about a lack of state protection must be looked at in the context of the civil and judicial institutions of the state in question. For example, it will not always be enough for the claimant simply to show that he or she asked the police for protection and was turned down. There may have been other remedies reasonably available (Kadenko v. Canada (Minister of Citizenship and Immigration) (1996), 143 D.L.R. (4th) 532 (F.C.A.)). Similarly, evidence of a local failure to provide protection does not mean that the state as a whole fails to protect its citizens (Zhuravlvev, above, at paragraph 31). As mentioned, the burden falls on claimants to prove underlying facts on a balance of probabilities. They also shoulder the burden of establishing that they meet the definition of a refugee. Therefore, in state protection cases, the claimant’s evidence may, for example, establish that he or she went to the police for protection and was denied it. The question then is whether that fact is sufficient to support the well-foundedness of the claim—that is, whether it establishes that there is a reasonable chance of persecution on return. Obviously, to answer that question, the claimant’s evidence must be analysed within the context of the conditions in his or her state of nationality.
[21]Another of Justice La Forest’s statements in Ward is often cited as providing support for imposing a substantial burden of proof on refugee claimants, and it is the phrase that Justice Rothstein relied on in Xue, above. Justice La Forest said that, unless a state concedes its inability to provide protection (which was the situation in Ward), claimants must provide “clear and convincing confirmation of a state’s inability to protect” (at page 724).
[22]The words “clear and convincing confirmation” could be interpreted as creating a standard of proof. They are sometimes used to refer to a standard of proof greater than a balance of probabilities and just short of proof beyond a reasonable doubt (see Kenneth S. Brown, ed. McCormick on Evidence, 6th ed. (St. Paul, Minn.: Thomsons West, 2006, at §340)). However, this is rare. In my view, Justice La Forest could not have intended to establish such a unique and elevated standard of proof in relation to state protection without any discussion on the point or any reference to the prior jurisprudence dealing with the burden of proof in refugee cases. In particular, he did not refer to the Adjei case, cited above, in which the Federal Court of Appeal specifically dealt with the burden of proof on refugee claimants in relation to the objective branch of the definition of a refugee. In fact, Justice La Forest held that, since the issue of state protection forms part of that objective aspect, evidence of a lack of state protection in itself amounts to proof of the well-foundedness of a refugee claim. He said, at page 726:
A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded.
[23]It seems inconsistent with this approach to require claimants to prove a lack of state protection on an elevated standard of proof. It also would appear to be inconsistent with the interpretation and humanitarian purpose of the refugee Convention [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6] (see, e.g. Brian Gorlick, “Common Burdens and Standards: Legal Elements in Assessing Claims to Refugee Status” (October 2002); Office of the United Nations High Commissioner For Refugees, “Note on Burden and Standard of Proof in Refugee Claims” (16 December 1998)—for complete citations see Annex B). In my view, to meet the objective branch of the definition of a refugee, the claimant must prove that there is a reasonable chance of persecution if returned to his or her country of nationality. Accordingly, where the fear of persecution derives from a lack of state protection, the decision maker must simply determine whether the relevant evidence meets that standard. If it does, then the claimant’s fear is well founded.
[24]Once again, I note that the reference to “clear and convincing confirmation” appears within Justice La Forest’s discussion of the kind of evidence claimants should be expected to provide to show an absence of state protection. He is describing the nature of that evidence, not the burden of proof on claimants. He specifically noted, as mentioned above, that a description of the treatment of similarly situated persons or of a past failure to obtain protection would be sufficient. Claimants have to provide “some evidence.” Obviously, that evidence must be reliable or else the claimant’s fear of persecution could not be considered to be objectively “well founded.” A mere assertion by a refugee claimant that a state is unable to provide protection would not be enough, which Justice La Forest made clear in his reference to Satiacum, above. In my view, looking at his judgment as a whole, the words “clear and convincing” do not erect a standard of proof; they simply describe the kind of evidence that would be capable of satisfying the objective branch of the definition of a refugee.
[25]As mentioned, the words “clear and convincing” can be used to stipulate a standard of proof. But those, or similar, words can also be used to describe the evidence that is capable of meeting a particular standard of proof, quite apart from the standard itself. For example, the Supreme Court of Canada has held that a requirement to show there are “reasonable grounds to believe” that a person has committed a crime against humanity can only be met where there is “compelling and credible information” to support it: Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, at paragraphs 114-117. Similarly, it has held that a decision to detain a permanent resident on a security certificate must be based on “compelling and credible” evidence: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, at paragraph 39. In both cases, the Court made clear that a relatively low standard of proof, “reasonable grounds to believe” (similar to the “reasonable chance” standard), could be met only by “compelling and credible” evidence. Without it, there would be no objective foundation for the finding in question. Similarly, in my view, without clear and convincing evidence of a lack of state protection, a claimant will fail to show that his or her claim is objectively well founded. However, this should not translate into a heightened standard of proof. The essential question remains: Has the claimant established that there is a reasonable chance that he or she will be persecuted if returned?
[26]As Justice Denis Pelletier has noted, “the question of state protection is rarely a yes/no proposition” (Zhuravlvev, above, at paragraph 19). Similarly, as Professor Audrey Macklin has stated, the “availability of state protection can rarely be described in absolutes” (“Refugee Women and the Imperative of Categories” (1995), 17 Hum. Rts. Q. 213, at page 266). It would be extremely onerous to place on refugee claimants the burden of proving a definitive absence of state protection. After all, refugees “are generally persons who fled with little else than what they could carry in their arms” and their “knowledge may not extend beyond their own experience and that of others who are similarly placed” (Zhuravlvev, at paragraph 24). The effect of imposing such a high burden of proof might be to require claimants in some cases to prove a likelihood of persecution, which the Federal Court of Appeal expressly rejected in Adjei in favour of a requirement that they merely prove a reasonable chance of persecution. In addition, it could mean that claimants who had discharged the general burden, by proving a genuine fear and a reasonable chance of persecution, would be denied refugee protection if they failed to establish an absence of state protection at a high standard of proof. In other words, claimants could be denied refugee protection even though they had met the definition of a refugee. Further, it could result in imposing a higher burden on persons who allege persecution by non-state agents than on those who claim to have been persecuted by the state. I see no support for these propositions in Canadian law.
(c) Application to this case
[27]Ms. Flores Carrillo stated that her common-law spouse began abusing her in 2001. She complained to police in 2004 after a severe beating, and then hid at a friend’s house. Her spouse, with the help of his brother, a police officer, found her and beat her again. She decided to flee to Canada.
[28]The Board expressed concern about the claimant’s credibility because of inconsistencies between her oral testimony and her written narrative. As a result, the Board gave little weight to her claim to have sought state protection. In particular, it discounted the significance of a written denunciation against her spouse issued by the Mexican Attorney General’s Office, which described the details of her complaint and referred to a medical report supporting her description of her injuries.
[29]However, the Board went on to state that even if Ms. Flores Carrillo’s account was true, she had not done enough to obtain state protection and had failed to discharge the high burden of proof on her. In particular, the Board found [at paragraph 20] that Ms. Flores Carrillo had not “rebutted the presumption of state protection with ‘clear and convincing’ evidence within the ‘preponderance of probability category’.”
[30]In light of my discussion of the burden of proof on refugee claimants, I find that the Board erred in law. In my view, the presumption of state protection falls away once the claimant has provided reliable evidence of a lack of state protection. At that point, the Board must determine whether it is satisfied that the claimant’s case is well founded. The question is: does the evidence establish that there is a reasonable chance that the claimant will be persecuted on return? Accordingly, where state protection is an issue, the Board should ask itself whether the limitations on the availability of state protection for the claimant give rise to that reasonable chance of persecution. I do not accept the respondent’s contention that the presumption of state protection relieves the Board of the duty to analyse the relevant evidence.
[31]I must emphasize that there is more than one way to express the burden and standard of proof on refugee claimants. It is only where a decision maker has imposed a standard that is clearly too high, or has failed to make clear what standard was applied, that the Court should order a new hearing. Even then, a new hearing is not necessary if, based on the paucity of evidence supporting the claimant’s case, the result would inevitably have been the same: Alam v. Canada (Minister of Citizenship and Immigration) (2005), 41 Imm. L.R. (3d) 263 (F.C.). In this case, the Board imposed too high a standard and I cannot conclude, based on the evidence Ms. Flores Carrillo supplied, that the result would necessarily have been the same had the proper standard been applied.
[32]I will entertain any submissions regarding a question for certification that are provided within 10 days of this decision.
JUDGMENT
THIS COURT’S JUDGMENT IS that:
1. The application for judicial review is allowed. A new hearing is ordered.
2. Submissions regarding a certified question must be filed within 10 days of the date of this judgment.
Annex “A”
Immigration and Refugee Protection Act, S.C. 2001, c. 27
96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of those countries;
Annex “B”
Brian Gorlick, “Common Burdens and Standards: Legal Elements in Assessing Claims to Refugee Status” (October 2002), online: United Nations High Commissioner for Refugees (UNHCR) ‹http:// www.unhcr.org/research/RESEARCH/3db7c5a94.pdf›
Office of the United Nations High Commissioner for Refugees, “Note on Burden and Standard of Proof in Refugee Claims” (16 December 1998), online: Refugee Law Reader ‹http://www.refugeelawreader.org/294.pdf›.