Ottawa, Ontario, October 3, 2005
PRESENT: THE HONOURABLE MR. JUSTICESHORE
BETWEEN:
CLAUDIA URBINA DE MORA
LUCIA PAOLA MORA URBINA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
ORDER
WHEREAS, this is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act [1] (IRPA) of the decision of the Immigration and Refugee Protection Division (Board) which, on December 30, 2004, dismissed the Applicants' claim for "refugee" status pursuant to section 96 and also that of a "person in need of protection" pursuant to subsection 97(1) of IRPA.
HAVING READ all the materials referred to the Court in this matter and having heard both parties plead before the Court, the Court is in general agreement with the internal flight alternative premise of the Applicants as summarized in the Applicants' Memorandum of Argument, if it is appropriately considered subsequent to the test described below; however, the test must not only be seen to be applied cosmetically but evident in practical terms, in a significant discussion in the reasons, themselves.
WHEREAS, the case at bar, unique unto itself, is considered for the internal flight alternative which is inherent to the Convention refugee definition. It is important to recall that according to the jurisprudence, claimants cannot be Convention refugees if there is an internal flight alternative. There are, however, two prerequisites to a finding that claimants are not Convention refugees because of an internal flight alternative:
(1) The Board must be satisfied, on a balance of probabilities, that there is a serious possibility of a claimant being persecuted in the internal flight alternative part of the country; and (the second part which must not be neglected, requiring equal attention);
(2) The conditions in that part of the country must be such that it would not be unreasonable in all of the circumstances for the claimant to seek refuge there. These are the prerequisites that must be met in each and every case recognizing the unique fact pattern in respect of each individual claimant and in each specific part of a country with respect to the individual claimant in question.[2]
UPON simply referring to certain documents transmitted by the Refugee Protection Division itself to the Applicants, without necessarily including the objective documents from recognized human rights organization monitors, which had been submitted by the Applicants to the Board. It is recognized that even these documents had not been taken into consideration as per the second prerequisite of the test described above; it, thus, becomes apparent that in the case of the Applicants for their particular situation, the outcome of the test, in and of itself, might have culminated otherwise had these and other documents been appropriately discussed in the decision.[3]
THEREON, the Court concludes that the Application for judicial review is granted.
1. The Application for judicial review be granted;
2. The matter be returned to the Board to be heard by a differently constituted panel
JUDGE
[1] S.C. 2001, c. 27.
[2] Resaratnam v. Canada(Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.)
[3] Public Works and Government Services - Canadian Translation Request No. 1783433 - dated 27 May 2004, the original bearing the date of 18 May 2004 - originating from Cofavic - Nongovernmental Organization for the Protection of Human Rights, writing in response to a May 14, 2004 Communication from the Immigration and Refugee Board, requesting information.