Federal Court Decisions

Date: 20070614

Docket: IMM-4427-06

Citation: 2007 FC 638

Edmonton, Alberta, June 14, 2007

PRESENT:     The Honourable Madam Justice Heneghan

BETWEEN:

ARMIDA ESPARZA-ALVAREZ and

ELIZABETH ARMIDA PEREZ-ESPARZA

Applicants

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]               Ms. Armida Esparza-Alvarez and her daughter Elizabeth Armida Perez-Esparaza (the “Applicants”) seek judicial review of the decision dated August 10, 2006, of the Immigration and Refugee Board, Refugee Determination Division (the “Board”). In its decision, the Board determined that the Applicants are not Convention refugees nor persons in need of protection as defined in sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the “Act”).

[2]               The Applicants are citizens of Mexico, and prior to their most recent claim for protection in Canada, lived in San Luis Potosi. The basis of their claim for protection was fear of abuse from the estranged husband of Ms. Esparza-Alvarez.

[3]               The Board accepted the Applicants’ allegations of abuse but determined that they were neither Convention refugees nor persons in need of protection because an Internal Flight Alternative (“IFA”) was reasonably available to them in Mexico City.

[4]               The Applicants challenge this finding and argue that, in reaching this conclusion, the Board improperly ignored relevant evidence, that is the affidavit of Mr. Francisco Rico-Martinez. This affidavit, sworn on June 7, 2006, purports to respond to concerns raised by the Board during the hearing about the manner in which persons like the Applicants could be located in populous regions of Mexico by means of different types of identification cards.

[5]               The Board’s finding as to the availability of an IFA was crucial to its decision. This was a finding of fact, reviewable on the standard of patent unreasonableness; see Khan v. Canada (Minister of Citizenship and Immigration), 2005 FC 44.

[6]               According to the decision in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, judicial intervention is warranted when the Board ignores evidence that is important to the disposition of a claimant’s case. In my opinion, the present application invites such judicial intervention. I cannot safely conclude that the Board considered the second affidavit of Mr. Rico-Martinez and that affidavit is important to the Applicants’ claim.

[7]               In the result, this application for judicial review is allowed and the matter is remitted to a differently constituted Board for determination. There is no question for certification arising.

ORDER

            This application for judicial review is allowed and the matter is remitted to a differently constituted panel of the Board for re-determination. There is no question for certification arising.

                                                                                                            “Elizabeth Heneghan”

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-4427-06

STYLE OF CAUSE:                          Armida Esparza-Alvarez and Elizabeth Armida

                                                            Perez-Esparza and The Minister of Citizenship and Immigration

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      June 6, 2007

REASONS FOR ORDER

AND ORDER:                                   HENEGHAN J.

DATED:                                             June 14, 2007

APPEARANCES:

SOLICITORS OF RECORD: