Federal Court Decisions

     Date: 19971223

     Docket: IMM-921-97

Between :

     WILLIANS ALEXANDER RODAS BONILLA

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

PINARD, J. :

[1]      The applicant seeks judicial review of a decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated February 11, 1997, in which the Board determined he was not a Convention refugee as defined in subsection 2(1) of the Immigration Act. The Board rejected the applicant's claim, given that he had failed to avail himself of the protection of the Salvadoran military.

[2]      The applicant essentially argues that the Board erred in finding that the Salvadoran military would be able to protect him from guerillas, and that he should have made greater efforts to avail himself of this protection.

[3]      Following the decision in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, it is now recognized that assessing the ability of the state to protect its citizens is a key part of the test for determining whether a refugee claimant has an objectively well-founded fear of persecution.

[4]      In Ward, the Court held that there exists a presumption whereby the state is presumed to be capable of protecting its citizens, and that the onus is on the claimant to rebut this presumption. Justice LaForest discussed what a claimant is required to show to displace this burden of proof at page 724:

Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in 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.

(Emphasis is mine.)

[5]      There are various ways in which a claimant could achieve this, as stated at pages 724 and 725:

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. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. 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.

(Emphasis is mine.)

[6]      In the present case, the Board relied on the test established in Ward, concluding that it was "objectively unreasonable that the claimant did not take greater steps to avail himself of the protection of the Salvadoran military", given that state protection "might reasonably have been forthcoming".

[7]      With respect to his personal experience, the Board mainly questioned the fact that the applicant received medical attention from the military following the first attack, and yet he never sought military protection from further attack. The only reason given by the applicant was that he personally felt that they could not protect him. The Board simply did not accept this as sufficient to relieve him of the onus to show that the state was unable to protect him. In my opinion, it was entirely open to the Board to arrive at this conclusion.

[8]      With respect to the experiences of similarly situated individuals, the Board was not convinced that the state had been unable to protect other former soldiers in the past. It gave three reasons for attributing little weight to the evidence regarding former soldiers who were either killed by guerillas or forced to flee the country in fear. First, the Board found that the military's medical response to the applicant was evidence that it was trying to offer protection to decommissioned soldiers. Second, the Board found that the applicant did not give enough details regarding whether decommissioned soldiers were in fact "let down by the state protection arrangement". Finally, because no details were provided about state protection in those cases, the Board was unable to determine whether indeed the state had made a serious effort to protect those individuals. I cannot accept that the Board erred in drawing these conclusions, particularly given that it is well established that assessment and weighing of evidence is entirely within the Board's jurisdiction.

[9]      In this context, I cannot conclude that the Board's finding that the applicant should have requested state protection was unreasonable in light of all the evidence.

[10]      Based on the foregoing reasons, the application for judicial review is dismissed.

                            

                                     JUDGE

OTTAWA, ONTARIO

December 23, 1997