** W joined INLA to protect his family, and was tasked with guarding 2 hostages
** When he found out they were to be executed, he helped them escape --- INLA found out it was him and tortured him threatening him with death
** He was arrested, and his family was taken hostage --- served time for role in the hostage taking and with help of prison padre got a passport to go to Canada to claim refugee status
** Found not to be a refugee, applied for redetermination, and the Board found him to be a refugee. Crown appealed and FC sent it back to Board for redetermination --- this is an appeal from the FC decision
** (1) whether the element of state complicity is required to establish a refugee claim and the nature of the "unwillingness" or "inability" of a claimant to seek the protection of his or her home state;
** (2) the meaning of "particular social group";
** (3) the nature of persecution for political opinion and whether desertion from a politico-military organization for reasons of conscience may properly ground a claim based on that ground;
** (4) whether s. 15 of the Charter was applicable; and
** (5) in cases of multiple nationality, whether the claimant must establish want of protection in all states of citizenship.
** State complicity is not required to ground a claim for the purposes of ‘unable’ or ‘unwilling’ in the Convention definition.
** 3 categories of particular social group
** Political opinion can be imputed from actions --- it is the opinion attributed to the claimant by their persecutors that is determinative
Issue 1: claimant has to provide clear and convincing evidence of state’s inability to protect --- presumed that states are capable of protecting their citizens (except in state breakdown)
** if the state is able to protect the claimant, then from an objective standard the fear of persecution is not well-founded
** state complicity is not necessary to ground a claim, where the state cannot or will not protect the claimant
** ineffective state protection is part of ‘unable’ and ‘unwilling’
** protection from Irish police would not be effective therefore
Issue 2: 3 categories of ‘particular social group’, which are based on defence of HR and anti-discrimination:
** (1) groups defined by an innate, unchangeable characteristic; (2) groups whose members voluntarily associate for reasons so fundamental to their human dignity that they should not be forced to forsake the association; and (3) groups associated by a former voluntary status, unalterable due to its historical permanence.
** INLA is not a particular social group, as it does not meet any of the 3 categories --- membership in INLA placed him in the circumstances that led to his fear, but fear was based on actions not affiliation
Issue 3: The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution
** Can impute W’s political opinion from his actions of setting the hostages free: he believed there were limits to means used for the achievement of political change--- his persecution stemmed from this fear
Issue 4: not necessary to resolve
Issue 5: The Board must investigate whether the claimant is unable or unwilling to avail him- or herself of the protection of each and every country of nationality
** There was evidence that the British gov't would likely not admit W on the basis of prohibiting nationals from entering Great Britain if they were connected with terrorism in Northern Ireland --- IRB needs to determine if presumption of protection is rebutted by state being unwilling or unable to protect him
Appeal allowed, remitted to the IRB to evaluate case consistent with the reasons in this case and to determine the issue of British citizenship.