IMM-3050-96
OTTAWA, ONTARIO, this 24th day of October 1997
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN:
NYAMABU KABONGO AIMERANCE,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
O R D E R
The application for judicial review of the decision of the Refugee Determination Division dated August 12, 1996, determining that the applicant is not a Convention refugee, is allowed. The matter is referred back to a different panel of the Refugee Determination Division for redetermination for the sole purpose of determining whether the applicant has an internal flight alternative that is realistic and attainable, having regard to her ethnicity, in Zaire.
Yvon Pinard
JUDGE
Certified true translation
C. Delon, LL.L.
IMM-3050-96
BETWEEN:
NYAMABU KABONGO AIMERANCE,
Applicant,
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PINARD J.
This is an application for judicial review of a decision of the Refugee Determination Division dated August 12, 1996, determining that the applicant is not a refugee, there being no basis for her fear of persecution for reasons of membership in a particular social group.
The decision which this application seeks to have reviewed is the result of an earlier decision of this Court1 concerning the same refugee claim, in which Associate Chief Justice Jerome held:
| ... Consequently, I order that this matter be returned to the original Board but only with respect to whether or not the applicant would face persecution as a member of a particular social group. The question of persecution on the basis of political opinion has been adequately dealt with by the Board in its decision of January 12, 1995. |
|
In its most recent decision, the Refugee Division found that the applicant might be persecuted in the region of Zaire known as Shaba, but that she could seek refuge elsewhere in Zaire and thereby avoid being persecuted because of her ethnicity:
| [translation] To conclude, the documentary evidence as a whole, and the testimony of the claimant, fails to show that a Luba living in Kinshasa or in any part of Zaire other than Shaba is persecuted because of his or her ethnicity. |
|
Although I find it sufficient that the question of internal refuge was raised only at the hearing, as I am of the view that the applicant had an opportunity at that time to state her position, I am nonetheless of the opinion, in the circumstances, that the Refugee Division erred by failing to make a finding as to the potential problem faced by deportees when they arrive at the international airport in Zaire. This problem was raised by the applicant herself in her testimony and also appears in the documentary evidence in the record. If it is true that deportees who are returned to Zaire are persecuted because of the shame they bring on the country, the applicant could then encounter a serious barrier that might prevent her from travelling to another part of the country, so that the internal flight alternative would be unrealistic and unattainable. In Thirunavukkarasu v. Canada (M.E.I.), [1994] 1 F.C. 589, the Federal Court of Appeal held, at page 598:
| An IFA [internal flight alternative] cannot be speculative or theoretical only; it must be a realistic, attainable option. Essentially, this means that the alternative place of safety must be realistically accessible to the claimant. Any barriers to getting there should be reasonably surmountable. The claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling there or in staying there. |
|
The seriousness of the error compels me to allow the application for judicial review and to refer the matter back to a different panel of the Refugee Determination Division for redetermination for the sole purpose of determining whether the applicant has an internal flight alternative that is realistic and accessible, having regard to her ethnicity, in Zaire.
OTTAWA, Ontario
October 24, 1997.
Yvon Pinard
JUDGE
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-3050-96
STYLE OF CAUSE: NYAMABU KABONGO AIMERANCE v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, October 21, 1997
REASONS FOR JUDGMENT OF Pinard J.
DATED: October 24, 1997
APPEARANCES:
Nyamabu Kabongo Aimerance FOR THE APPLICANT
Diane Dagenais FOR THE RESPONDENT
SOLICITORS OF RECORD:
Nyamabu Kabongo Aimerance FOR THE APPLICANT
Toronto, Ontario
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 (December 15, 1995), IMM-221-95.
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