State control does not equate to state protection in a refugee case: Federal Court

Refugee claimant said the discrimination his family experienced in Belarus amounts to persecution

State control does not equate to state protection in a refugee case: Federal Court

In a recent refugee case, the Federal Court has clarified that the presence of state control does not necessarily equate to the availability of state protection.

In 2023 FC 1472, the applicant is a citizen of Nigeria and a permanent resident of Belarus. His wife and their two minor children are citizens of Belarus. The applicant is a person of African descent. The family sought admission into Canada, seeking entry as a refugee.

The family submitted a Pre Removal Risk Assessment (PRRA), pointing out the risks they would face in Belarus if they were returned—physical attacks, ongoing racism, and discrimination in employment and against their minor children. The applicant asserted that the discrimination his family experienced in Belarus amounted to persecution.

An immigration officer refused the family’s PRRA application. The applicants brought the case to the Federal Court, seeking judicial review of the officer’s decision. They challenged the officer’s finding on the availability of state protection.

In support of their PRRA application, the applicants recounted various racially motivated attacks. They also argued that the anti-discrimination laws regarding employment and occupation are not entrenched in the law of Belarus. In addition, one of the minor children had faced discrimination, bullying and violence at his school.

The officer found that the discrimination the applicants alleged did not amount to persecution and that Belarus has taken the initiative to target racism and promote equality. The officer also found there is available state protection.

The officer said, “In general, state protection is considered adequate if the state is in effect control of its territory, which means that it demonstrates that it has viable police and military and makes serious efforts to protect its citizens.”

The Federal Court said that the officer wrongly equated the presence of state control with the availability of state protection. The court pointed out that the officer’s reasoning means authoritarian regimes with poor human rights records would be considered those best placed to protect their people. The court said such reasoning is perverse and clearly contradictory with well-established jurisprudence.

 The court further found that the officer made an error by focusing on the measures adopted by the state instead of the effectiveness at the operational level. The court stressed that state protection must be effective at the operation level and that it is not enough to point to efforts made by a state to address shortcomings. The court noted that the Belarus mission to the United Nations admitted that their country had not passed any anti-discrimination and anti-racism law.

Ultimately, the court ruled that the officer committed an error in their analysis of state protection. The court noted the personal evidence about the race-based violence, harassment, and bullying experienced by the applicants and the extensive country condition evidence demonstrating the systemic nature of racism in Belarus as factors to be considered in assessing the applicants’ claim. The court referred the case for redetermination by a different decision-maker.

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