Date: 20050216
Docket: IMM-2745-04
Toronto, Ontario, February 16th, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
MERCEDES SUSANA ROMERO ESPINOZA
CESAR PABLO FERNANDEZ MENDOZA
ANDREA LUJAN FERNANDEZ ROMERO
PAULO ROBERTO FERNANDEZ ROMERO
ANALIA SUSANA FERNANDEZ ROMERO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an Application for judicial review of adecision of the Refugee Protection Division ("RPD") dated February 23, 2004, wherein the Applicants' claim for refugee protection under s.96 and s.97 of the Immigration and Refugee Protection Act (the "IRPA") was rejected.
[2] The Applicants are a family from Argentina who claim a well-founded fear of persecution on the ground of political opinion and racial discrimination. The principal Applicant is Mercedes Susana Romero Espinoza.
[3] Upon the conclusion of the hearing before the RPD, by agreement, written argument was submitted. A central element of the principal Applicant's claim for refugee protection is that, as a result of the persecution she suffered, she is left in poor psychological health. The RPD accepted that the principal Applicant suffers from post-traumatic stress disorder with depression and anxiety (RPD Decision, p.7). However, on a negative credibility finding, and a finding that the Applicants failed to discharge the presumption of state protection, their claim under s.96 of the IRPA was rejected.
[4] However, with respect to the Applicants' claim under s.97(1)(b) of the IRPA, in written argument placed before the RPD, Counsel for the Applicants argued that the principal Applicant would be at risk of cruel and unusual treatment arising out of her psychological disability if she were to return to Argentina. I agree with Counsel for the Applicants' argument that, as an element of natural justice, the principal Applicant's detailed argument under s.97(1)(b) must be specifically addressed. In my opinion, the RPD did not meet this requirement.
[5] The only substantiative statement made by the RPD with respect to Counsel for the Applicants' detailed argument under s.97(1)(b) is as follows:
Having so found that the claimants are not Convention refugees the panel further considered whether the claimants face a risk to their lives or to cruel and unusual punishment should they return to Argentina. The Panel finds that there exist no such possibilities. The panel further finds that there is not a serious possibility or a reasonable chance that the claimants would be tortured.
(RPD Decision, p.12)
[6] In my opinion, the RPD's statement is not in anyway responsive to the argument posed by Counsel for the Applicants. Therefore, I find that, on the basis of a denial of natural justice, the RPD's decision is made in reviewable error.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2745-04
STYLE OF CAUSE: MERCEDES SUSANA ROMERO ESPINOZA
CESAR PABLO FERNANDEZ MENDOZA
ANDREA LUJAN FERNANDEZ ROMERO
PAULO ROBERTO FERNANDEZ ROMERO
ANALIA SUSANA FERNANDEZ ROMERO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: FEBRUARY 16, 2005
PLACE OF HEARING: TORONTO, ONTARIO.
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: FEBRUARY 16, 2005
APPEARANCES BY:
Patricia Wells FOR THE APPLICANTS
Bernard Assan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Patricia Wells
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT