The proposed reforms in Bill C-11 will affect thousands of people and significantly alter how certain persons are treated under Canadian immigration and refugee law. But there is one case we should be guided by in particular in considering the concept of under section 109.1 – Designated Countries of Origin if this is a road we must go down. The Honourable Justice Zinn in the recent decision of Torres 2010 FC 234 summarizes some of the considerations quite well:
A contextual approach is required when assessing the availability of state protection and whether a claimant has rebutted the presumption of state protection: Garcia v. Canada (Minister of Citizenship and Immigration), 2007 FC 79; L.A.O. v. Canada (Minister of Citizenship and Immigration), 2009 FC 1057. As I said in L.A.O. at para. 24: “State protection cannot be determined in a vacuum.” When undertaking a contextual approach in determining whether the refugee claimant has rebutted the presumption of state protection, many factors ought to be considered, including the following:
a.The nature of the human rights violation;
b.The profile of the alleged human rights abuser;
c.The efforts that the victim took to seek protection from authorities;
d.The response of the authorities to requests for their assistance; and
e.The available documentary evidence.
The nature of the human rights violation is important in the state protection analysis because there are many countries that provide adequate state protection generally, but fail to do so for specific types of violations, for example, gender-based violence. Further, the frequency and severity of violations are important in determining both what steps a claimant is expected to take as well as what track record of protection the state was able to provide over a period of time. If all the alleged human rights violations happened within a short period of time, a state’s protection apparatus may not have had time to effectively function. At the same time, when faced with a preveable imminent risk to their life, claimants may not have to take the same efforts to rebut the presumption of state protection as when there is no imminent risk.
The profile of the alleged human rights abuser is important due to the fact that, even in democratic countries, certain individuals can be above the law. The adequacy of state protection frequently depends on the characteristics of the abuser. If the abuser is in a position of power or has close ties to the police or other authorities, it may be very difficult, if not impossible, for a claimant to obtain protection
We can only hope the proposed law keeps these very wise words in mind going forward . . .