Refugee Caselaw Site
University of Michigan Law School

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Q.lack of state protection as persecution
By Menachem (Montreal, Quebec, Canada) On Jul 11, 2012 Public
Asylum Country : Israel,
Concepts : Persecution, condoned by state; Persecution, tolerated by State; State, unwillingness to protect
Description : Can a state's refusal to provide protection to an individual, in a destabilized country (Chad), based on his imputed political opinion and ethnic group, constitute persecution under the convention? The asylee claims that he was repeatedly terrorized by rogue soldiers and rebels, and could not go to the police because they previously accused him of being a rebel, though they have not actively searched for him for two years.

Replied By Palmer (Ann Arbor, Michigan United States) On Oct 10, 2012

The fundamental purpose behind the Refugee Convention is surrogate protection for individuals who are unable to find state protection in his or home country. When persecution occurs on a protected ground, such as political opinion or ethnicity, the state must be able to protect its citizens. Horvath v. SSHD requires that there must be a system of domestic protection and machinery for the detection, prosecution and punishment of persecutory acts. There must also be an ability and a readiness to operate that machinery. Svazas v SSHD requires not perfect, but timely and effective rectification of the situation that allows for the persecution. Jeremy Dean Hinzman et al. v Minister of Citizenship and Immigration utilizes a sliding scale for required state protection based on the level of democratic sophistication. The court finds a failure of state protection more easily in a less democratic country.

Assigned Cases

1.

Rolandas Svazas v Secretary of State for the Home Department
Date Decided : Jan 31, 2002 Court : Court of Appeal
Jurisdiction : United Kingdom Country of Origin : Lithuania
Hathaway Number(s) : 1.0, 4.1, 4.2, 4.5.1, 5.0, 5.6.1 Site Name :
Description : Member of banned Communist Party was twice arrested for 10-14 days, during which time he was beaten and kicked, but political brutality of this kind albeit unlawful is not routinely constrained.

2.

Milan Horvath v Secretary of State for the Home Department
Date Decided : Jul 6, 2000 Court : House of Lords
Jurisdiction : United Kingdom Country of Origin : Slovakia
Hathaway Number(s) : 1.0, 3.2, 4.1, 4.2, 4.5.1 Site Name :
Description : A gypsy man was repeatedly harassed and attacked by neo-Nazi skinheads, his personal property was destroyed, his father beaten to death, and his brother attacked because of his ethnicity.

3.

Jeremy Dean Hinzman et al. v Minister of Citizenship and Immigration
Date Decided : Apr 30, 2007 Court : Federal Court of Appeal
Jurisdiction : Canada Country of Origin : United States
Hathaway Number(s) : 4.1, 4.2, 4.5.1, 5.6.2 Site Name :
Description : Soldier with Buddhist views who was not found to be a conscientious objector fears differential punishment for leaving the military because of his high profile circumstances.
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