Canada ( Minister of Employment and Immigration ) v. Villafranca
A-69-90 / A-70-90
Hugessen J.A.
18/12/92
4 pp.
Appeal from decision respondent Convention refugee -- Respondent, Philippine national, policeman in home country -- Fleeing Philippines as marked for death by communist terrorist guerilla group -- Refugee Division finding well-founded fear of persecution by reason of political opinion and membership in particular social group -- Appeal allowed -- Refugee Division's finding not automatically leading to determination of refugee status -- Convention refugee defined as person outside country of nationality by reason of well-founded fear of persecution and "is unable, or by reason of that fear, is unwilling to avail himself of the protection of that country" -- In more common type of refugee claim, government itself persecuting agent or accomplice in persecution, through condonation, tolerance or deliberate inaction -- In such cases claimant clearly unwilling, by reason of fear, to avail himself of state protection -- Where claimant himself agent of state, cannot be said to be unwilling to seek state's protection -- Claim can only succeed if shows unable to do so -- Refugee Division failing to address question of whether respondent unable to seek state's protection or even to recognize problem existed -- To establish unable to avail oneself of protection of one's own state, claimant must show either physically prevented from seeking government's aid or government itself in some way prevented from giving it -- Terrorism in name of some warped ideology scourge afflicting many societies today -- Victims of terrorism not Convention refugees simply because governments unable to suppress evil -- Where state so weak, and control over all or part of its territory so tenuous as to make it government in name only, refugee may justly claim to be unable to avail himself of protection: Zalzali v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 605 (C.A.) -- Situations of civil war, invasion or total collapse of internal order normally required to support claim of inability -- Where state in effective control of territory, has military, police and civil authority in place and makes serious efforts to protect citizens from terrorist activities, mere fact not always successful in doing so insufficient to justify claim victims of terrorism unable to avail themselves of such protection -- Since Board failed to ask itself crucial question, matter returned for new hearing -- Immigration Act, R.S.C., 1985, c. I-2, s. 2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).