Mendivil v. Canada ( Secretary of State )
A-132-93
Desjardins, Stone, Marceau JJ.A.
7/2/94
12 pp.
Appeal from Immigration and Refugee Boards's decision appellant not Convention refugee -- Degree of protection citizen can reasonably expect from his country in cases of civil unrest so as to disqualify appellant in efforts to claim refugee status -- Appellant, citizen of Peru, active member of political movement from left, sub-prefect of province responsible for coordinating security with military -- Informed by police Sendero Luminoso (violent anti-government movement) intending to eliminate him -- Claimant left for Lima in 1987, arriving in Canada in 1991 where claimed refugee status on grounds of political opinion and membership in particular social group -- Board rejected claim on basis state of Peru may not have been able to afford claimant special protection, but able to provide claimant with ordinary protection afforded to ordinary citizens -- Alluding to fact claimant able to live in Lima without "adverse consequences" until departure in 1991 -- Not considering possibility persons specifically targeted, who may qualify as members of particular social group, might still have good grounds for fearing persecution when State capable of protecting ordinary citizens but incapable of protecting members of particular social group -- Possible Board not appreciating facts in entirety -- State's inability to protect integral component of notion of Convention refugee, particularly in light of words "well-founded": Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 -- Absent State admission cannot afford protection, claimant must provide "clear and convincing confirmation of a state's inability to protect him" -- Case at bar not of "complete breakdown of state apparatus" -- Board should address whether can still be assumed state of Peru able to protect claimant, or whether such presumption rebutted by claimant -- Isolated cases of victimization may not reverse presumption -- Subjective fear of persecution combined with State inability to protect claimant creating presumption fear well-founded -- Where subjective fear established, Board "entitled to presume that persecution will be likely, and the fear is well-founded, if there is an absence of state protection": Ward, supra -- Court not persuaded State able to protect appellant against feared persecution by terrorist group -- Appeal allowed.