Canada (Minister of Employment and Immigration) v. Villafranca

Indexed as: Canada (Minister of Employment and Immigration) v. Villafranca (F.C.A.)

Between

Crispina Villafranca, Raymund Villafranca and Allan Villafranca, Respondents

[1992] F.C.J. No. 1189

[1992] A.C.F. no 1189

99 D.L.R. (4th) 334

150 N.R. 232

18 Imm. L.R. (2d) 130

37 A.C.W.S. (3d) 1259

Appeal Nos. A-69-90, A-70-90

 Federal Court of Appeal

 Winnipeg, Manitoba

Marceau, Hugessen and Décary JJ.

Heard: December 18, 1992

 Oral judgment: December 18, 1992

(6 pp.)

Aliens -- Immigration -- Admission -- Refugees.

Appeals from a decision of the Refugee Division finding the respondents and their children to be convention refugees. At issue was whether the respondent was unable to avail himself of the state's protection.

HELD: Appeals allowed. The Board had failed to consider this issue which was crucial to its decision. Matter remitted to a different panel for a new hearing. Costs to respondents on a solicitor and client basis.

Statutes, Regulations and Rules Cited:

Immigration Act, R.S.C. 1985, c. I-2, s. 2.

Gerald Chartier, for the Appellant.

Saul Simmonds, for the Respondents.

The judgment of the Court was delivered orally by

HUGESSEN J.:-- These two appeals are from a single decision of the Refugee Division which found the respondents and their children to be convention refugees. Since the claim of the wife and children depends on that of the husband, and does not materially differ from it, we will deal only with the latter.

The respondent, a Philippine national, served in his home country as a policeman. He fled his country because he said he had been marked for death by a communist terrorist guerilla group, the NPA, and he feared for his life. The Refugee Division found him credible and held that he did indeed have a well founded fear of persecution at the hands of the NPA by reason of his political opinion and membership in a particular social group. That conclusion is irreproachable as far as it goes and has not been seriously put in issue here. It does not, however, by itself, as the Refugee Division obviously thought, lead automatically to a determination that the respondent is a convention refugee. The definition of convention refugee¹ is as follows:

2.            ...

"Convention Refugee" means any person who

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or

(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

(b) has not ceased to be a Convention refugee by virtue of subsection (2),

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to the Act;

The critical words in a case such as this are "is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country".

In the more common type of refugee claim the government of the claimant's country of origin is itself the persecuting agent or is in some way complicit in the persecution, through condonation, tolerance or deliberate inaction. In such cases the claimant clearly is unwilling, by reason of his fear, to avail himself of state protection. In a case such as this, however, where the claimant is himself an agent of the state, it makes no sense whatever to speak of him being unwilling to seek the state's protection. The claim can only succeed if he shows that he is unable to do so.

In the present case the Refugee Division utterly failed to address this question and does not seem even to have recognized that the problem existed.

The burden of showing that one is not able to avail oneself of the protection of one's own state is not easily satisfied. The test is an objective one and involves the claimant showing either that he is physically prevented from seeking his government's aid (clearly not the case here) or that the government itself is in some way prevented from giving it.

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, however, the state is so weak, and its control over all or part of its territory so tenuous as to make it a government in name only, as this Court found in the case of Zalzali v. Canada (Minister of Employment and Immigration)², a refugee may justly claim to be unable to avail himself of its protection. Situations of civil war, invasion or the total collapse of internal order will normally be required to support a claim of inability. On the other hand, 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.

Since the Board failed to ask itself a question that was crucial to the decision that it reached, the matter must go back for a new hearing. We would not want to leave the case, however, without indicating our sympathy for the claimant and his family and suggesting that they may be deserving of consideration on some other than a strictly legal basis.

The appeals will be allowed, the decision will be set aside and the matter returned to a differently constituted panel of the Board for a new hearing. Pursuant to section 84 the respondents shall be entitled to tax their costs against the appellant on a solicitor and client basis.

HUGESSEN J.

1 Immigration Act, R.S.C. 1985, c. I-2

2 [1991] 3 F.C. 605