Date: 20020724
Docket: IMM-3501-01
Neutral Citation: 2002 FCT 819
BETWEEN:
STELIAN PAUL MURESAN, LIANA MURESAN,
DENISA ANTONIA MURESAN and MARIANA MURESAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
INTRODUCTION
[1] Mr. Stelian Paul Muresan, Liana Muresan, Denisa Antonia Muresan and Mariana Muresan, (the "Applicants") seek judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") dated June 28, 2001. In its decision, the Board determined that the Applicants were not Convention refugees because they had an internal flight alternative available to them in their country of origin.
FACTS
[2] Mr. Muresan is married to Liana Muresan. They are the parents of Denisa Antonia Muresan. Ms. Mariana Muresan is the sister of Mr. Muresan.
[3] Mr. and Mr. Muresan and Ms. Muresan all claim Convention refugee status on the basis of a fear of persecution in Romania, particularly by the police, on account of their ethnicity, that is Roma.
[4] Mr. Muresan and Ms. Mariana Muresan testified about incidents of discrimination and mistreatment over many years for the police in their home town of Dej. Each testified about the unexplained murder of their father and the death of their mother in a motor vehicle accident some years later. They testified that their mother suspected police involvement in their father's death. They testified that they suspected the police were also implicated in the death of their mother.
[5] As well, Ms. Muresan was attacked by three men on January 15, 2000. She alleged she was raped by her assailants. She claimed that one of the attackers was a police officer with whom she had had previous problems.
[6] Ms. Liana Muresan, who married Stelian in January 2000, testified about her experience of discriminatory behaviour while she was in school and by the police. She was present when her sister-in-law was attacked in January 2000, but managed to escape.
[7] Ms. Liana Muresan, her infant daughter and Ms. Mariana Muresan fled Romania in February 2000, and came to Canada. The Board determined that Mr. Muresan and his wife were not Convention refugees on the grounds the mistreatment they had suffered in the past did not amount to persecution. The Board was not satisfied there was sufficient evidence to support a finding of persecution in the future. The Board applied a test of balance of probabilities in assessing the reasonableness of the fear of persecution held by these Applicants and reached a negative conclusion.
[8] It then went on to consider whether an internal flight alternative existed for them in Romania, that is in Bucharest. The claim of the infant Applicant, Denisa Antonia Muresan was determined on the basis of her parents' claim.
[9] The Board found the Applicant Mariana Muresan to be a Convention Refugee on the basis of her past treatment in Romania. It then considered whether an internal flight alternative was available and concluded that there was in Bucharest. In the result, the Board determined that she was not a Convention refugee.
ISSUE
[10] The issue in this proceeding is whether the Board erred in determining that an internal flight alternative is available for the Applicants in Bucharest.
ANALYSIS
[11] The Board erred in the test it applied in determining that the Applicants Paul Muresan, his wife Liana and their child Denisa Antonia
[12] The test is not a balance of probabilities but, as stated by the Federal Court of Appeal in Adeji v. Canada (Minister of Employment and Immigration [1989] 2 F.C. 680 at page 683 where Justice MacGuigan stated the test in the following terms:
- What is evidently indicated by phrases such as "good grounds" or "reasonable chance" is, on the one hand, that there need not be more than a 50% chance (i.e., a probability), and on the other hand that there must be more than a minimal possibility.
[13] However, in this case, the Board's misinterpretation of the test does not amount to a reviewable error because it proceeded to consider the availability of a internal flight alternative for all the Applicants. That analysis was proper since the definition of "Convention refugee" requires consideration of the availability of a internal flight alternative. In this regard, I refer to Thirunavukkarasu v. Minister of Employment and Immigration (1994), 163 N.R. 232 (F.C.A.) where the Court described the availability of an internal flight alternative as being part of the "Convention refugee" definition. A claimant bears the burden of showing that an internal flight alternative is not available.
[14] The Applicants argue that the Board's finding relative to an internal flight alternate in Bucharest was unreasonably made in the absence of any evidence that they would not be at risk of persecution by the police in that city. The Board noted that the Applicants would have to register with the police in Bucharest as part of the requirements to establish residence, but concluded that there was no evidence that the police in Bucharest would take a special interest in them or contact the police in their home town of Dej. Even if the police were to contact the police in Dej, there are no warrants outstanding in that town against the Applicants and on a balance of probabilities, the police would not be interested in them.
[15] It appears from the certified Tribunal Record that in a pre-screening of the Applicants' claims, the Board identified the availability of an internal flight alternative as an issue.
[16] In Thirunavukkarasu, supra, the Court discussed the need for evidence before a Board can find that an internal flight alternative is reasonably available. In my opinion, the Board's conclusions on this issue in this case are vulnerable because they are not supported by the evidence.
[17] I conclude that the Applicants' arguments are well-founded and that the Board reached a conclusion respecting an internal flight alternative which is not supported by the evidence.
[18] Accordingly, the application for judicial review is allowed and the matter is remitted to a differently constituted board for reconsideration.
[19] There is no question for certification.
"E. Heneghan"
_____________________________
J.F.C.C.
OTTAWA, Ontario
July 24, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3501-01
STYLE OF CAUSE: STELIAN PAUL MURESAN, LIANA MURESAN,
DENISA ANTONIA MURESAN and MARIANA
MURESAN
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: JULY 11, 2002
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE HENEGHAN
DATED: JULY 24, 2002
APPEARANCES:
MS. D. JEAN MUNN FOR THE APPLICANT
MS. TRACY KING FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
CARON & PARTNERS FOR THE APPLICANT
CALGARY, ALBERTA
MR. MORRIS ROSENBERGFOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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