Creating higher burdens: the presumption of state protection in democratic countries.

Author:Liew, Jamie Chai Yun


The author examines the burden on refugee claimants at the Immigration and Refugee Board in Canada to provide evidence that their home state cannot protect them. In particular, the paper discusses the growing trend of adjudicators taking de facto judicial notice of the fact that a country is democratic to make the finding that there is state protection for claimants. The author argues that the practice of labelling countries as democratic and making state protection findings upon the finding is a biased and unhelpful practice when evaluating the issue of whether state protection exists. The paper discusses what "democracy" means and the problems associated with defining it. It will discuss how judicial notice of whether a state is democratic can affect an analysis of state protection in the example of claimants fleeing domestic abuse in Mexico.


L'auteure examine la charge pesant sur les demandeurs d'asile a la Commission de l'immigration et du statut de refugie du Canada de fournir la preuve que leur Etat d'origine ne peut pas les proteger. En particulier, le present article examine la tendance croissante des juges de faire automatiquement le constat judiciaire du fait qu'un pays est democratique pour arriver a la conclusion qu'il y a protection de l'Etat pour les demandeurs. L'auteure fait valoir que la pratique d'etiqueter des pays comme democratiques et d'en tirer des conclusions quant a la protection de l'Etat est une pratique biaisee et inutile lorsqu'il s'agit d'evaluer la question a savoir si la protection de l'Etat existe. L'auteure aborde le sens de la > et les problemes lies a sa definition. Elle explique comment le constat judiciaire voulant qu'un Etat soit democratique peut affecter une analyse de protection de l'Etat dans l'exemple des demandeurs d'asile fuyant la violence domestique au Mexique.


In April 2009, Canada's Minister of Citizenship and Immigration, Jason Kenney, stated that asylum seekers' applications from "liberal democracies" may be treated differently than those from totalitarian regimes. (1) Minister Kenney has now gone further than making public statements, and introduced a bill titled Balanced Refugee Reform Act in the House of Commons to amend the Immigration and Refugee Protection Act (IRPA). (2) This "reform" has been pushed through the Canadian parliamentary system at breakneck speed, with first reading taking place on March 30, 2010, and receiving Royal Assent on June 29, 2010. (3)

Among the "balanced reforms" is clause 12 of Bill C-11, which creates a new section in IRPA. The new section 109.1(1) of IRPA "provides that the Minister may designate by order, nationals of a country, a part of a country, or a class of nationals of a country, if the Minister is of the opinion that they meet criteria established in the regulations." (4) This "designated countries of origin" clause essentially allows the government to create a list of countries from which they deem refugees could not possibly come. Citizenship and Immigration Canada framed the new provision as follows:

Most Canadians recognize that there are places in the world where it is less likely for a person to be persecuted compared to other areas. Yet many people from these places try to claim asylum in Canada, but are later found not to need protection. This suggests that they may be using Canada's asylum system to jump the queue. Too much time and too many resources are spent reviewing these unfounded claims. Designated countries of origin will include countries that do not normally produce refugees, that have a robust human rights record and offer strong state protection. States with strong democratic, judicial and accountability systems are likely to provide the necessary protection to their citizens. (5) This amendment could open the door to allowing the government to diminish refugee claimants' rights whether an individual is a bona fide refugee simply because of the country they are from. It would essentially allow the government to use certain criteria, such as whether a country is democratic, to determine whether or not a state could provide protection to its nationals. The new section also gives licence to use a particular bias when evaluating claims from "designated countries."

The concept of the lack of state protection is central to defining who is a refugee. Indeed the impetus with creating protection for refugees is because a refugee is unable to seek protection from their home country. Hathaway states:

... the intention of the drafters was not to protect persons against any and all forms of even serious harm, but was rather to restrict refugee recognition to situations in which there was a risk of a type of injury that would be inconsistent with the basic duty of protection owed by a state to its own population. As a holistic reading of the refugee definition demonstrates, the drafters were not concerned to respond to certain forms of harm per se, but were rather motivated to intervene only where the maltreatment anticipated was demonstrative of a breakdown of national protection. ... persecution may be defined as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection. A well-founded fear of persecution exists when one reasonably anticipates that remaining in the country may result in a form of serious harm which government cannot or will not prevent, including either "specific hostile acts or ... an accumulation of adverse circumstances such as discrimination existing in an atmosphere of insecurity and fear." [...] In sum, persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognized by the international community. (6) The question then becomes, how do we determine whether there is enough state protection afforded before the international duty of surrogate protection may be said to arise?

Hathaway notes that it is obvious that when a state is an agent of persecution, not only conducting the persecution, but also condoning or supporting it, the state is not affording state protection. (7) Similarly, Hathaway writes that state protection is clearly not available when a state is unwilling to defend its citizens from harm. He states: "Beyond these acts of commission carried out by entities with which the state is formally or implicitly linked, persecution may also consist of either the failure or inability of a government effectively to protect the basic human rights of its populace." (8) Hathaway lists four situations where state protection not founded:

  1. Persecution committed by the state concerned;

  2. Persecution condoned by the state concerned;

  3. Persecution tolerated by the state concerned;

  4. Persecution not condoned or not tolerated by the state concerned bur nevertheless present because the state either refuses or is unable to offer adequate protection. (9)

The Supreme Court of Canada in Ward also grappled with the proper test for determining the existence of effective state protection:

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. (10) Here, the Supreme Court of Canada created a presumption of state protection. Essentially, the Court imposed a burden upon a refugee claimant to rebut a presumption that a state is unwilling or unable to protect a refugee claimant. In presenting a refugee claim, the onus was placed upon a claimant to show "clear and convincing" proof to rebut a presumption that their home state can provide protection.

In conducting evaluations, Canadian Courts have grappled with what kinds of factors or tools they may use in making the assessment that a state has not or is unwilling or unable to provide state protection to an individual. One of the tools that Canadian Courts have increasingly relied upon is taking de facto judicial notice of whether the home country of a claimant is democratic or not. Courts have added a gloss to the presumption of state protection, by stating that the burden to rebut state protection is higher for those coming from democratic states. The Federal Court of Appeal in Kadenko brought the practice of recognizing whether a state is democratic or not, as an indicator to the level of state protection provided to claimants:

When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the course of action open to him or her. (11) In making this finding, the Federal Court of Appeal in Kadenko crafted a higher threshold that refugee claimants must meet in Canada since the Ward decision. No longer is the examination of whether there is state protection de novo or from a clean slate. The Kadenko decision gives the Immigration and Refugee Board (Board) and Federal Court judges licence to take judicial notice of the political structure of a country and to put the onus back on the claimant to prove that a state in question cannot protect them.

This paper aims to discuss whether the seminal decision in Kadenko, which links state protection to democracy, provides decision makers with an appropriate tool upon which to determine...

To continue reading