Kadenko et al. v. Canada (Solliciteur général), (1996) 206 N.R. 272 (FCA)

• Judge: Hugessen and Décary, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 15, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 206 N.R. 272 (FCA);1996 CanLII 3981 (FCA);143 DLR (4th) 532;206 NR 272;[1996] FCJ No 1376 (QL);124 FTR 160;68 ACWS (3d) 334

Kadenko v. Can. (1996), 206 N.R. 272 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Le Ministre de la Citoyenneté et de l'Im­migration (appelant) v. Ninal Kadenko, Boris Fedosov, Alexander Fedosov et Mila Fedosov (intimés)

(A-388-95)

Indexed As: Kadenko et al. v. Canada (Solliciteur général)

Federal Court of Appeal

Hugessen and Décary, JJ.A.

and Chevalier, D.J.

October 15, 1996.

Summary:

Four Christian citizens of Israel sought Convention refugee status in Canada on the basis of a well-founded fear of persecution. The Refugee Division rejected their claim. The refugee claimants sought judicial review.

The Federal Court of Canada, Trial Divi­sion, in a judgment reported 107 F.T.R. 25, allowed the application, quashed the Refugee Division's decision and referred the matter to be heard by a panel of different members. The court certified the following question for consideration by the Federal Court of Appeal:

"Where there has not been a complete breakdown of the governmental apparatus and where a state has political and judicial institutions capable of protecting its citi­zens, does the refusal by certain police officers to take action suffice to establish that the state in question is unable or unwilling to protect its nationals?"

The Federal Court of Appeal answered negatively the certified question as worded. The court allowed the appeal, set aside the Trial Division's judgment and dismissed the application for judicial review.

Aliens - Topic 1322

Admission - Refugees - Grounds - Well­founded fear of persecution - Four Chris­tian citizens of Israel sought refugee status alleging a well-founded fear of persecu­tion - They alleged harassment, including religious fanatics bursting into their home several times to control the food they ate and having armed gunmen burst into their apartment - The child claimant was har­assed at school and his mother was sex­ually assaulted and har­assed - Twice the police failed to react to these events - The Refugee Division rejected the refugee claim, holding that these were isolated acts of discrimination not amounting to perse­cution and that Israel was able to protect these claimants - The Federal Court of Canada, Trial Division, quashed the deci­sion and referred the matter for recon­sideration - The Fed­eral Court of Appeal allowed an appeal, set aside the Trial Division's judgment and the judicial review application.

Aliens - Topic 1323.2

Admission - Refugees - Persecution - Protection of country of nationality - The Federal Court of Canada, Trial Division, certified the following question: "Where there has not been a complete breakdown of the governmental apparatus and where a state has political and judicial institutions capable of protecting its citizens, does the refusal by certain police officers to take action suffice to establish that the state in question is unable or unwilling to protect its nationals?" - The Federal Court of Appeal answered negatively the question as worded - Refusal of certain police officers to take action cannot in itself render a state incapable of protecting its citizens - The claimant's burden of proof was directly proportional to the state's level of democracy - The more democratic the state, the more the claimant must have done to exhaust all courses of action - See paragraphs 3 to 5.

Cases Noticed:

Minister of Employment and Immigration v. Villafranca (1992), 150 N.R. 232 (F.C.A.), refd to. [para. 4].

Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.), refd to. [para. 5].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 5].

Counsel:

Michèle Joubert, for the appellant;

Jacques Beauchemin, for the respondents.

Solicitors of Record:

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Alarie, Legault, Beauchemin, Paquin, Jobin & Brisson, Montreal, Quebec, for the respondents.

This appeal was heard in Montreal, Que­bec, on October 15, 1996, before Hugessen and Décary, JJ.A., and Chevalier, D.J., of the Federal Court of Appeal.

On October 15, 1996, Décary, J.A., ren­dered the following oral decision for the Court of Appeal.