Date: 20040903
Docket: IMM-7417-03
Neutral Citation: 2004 FC 1216
Ottawa, Ontario this 3rd day of September 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
MARIFI BULAKLAK HERNANDEZ
CARLO BULAKLAK HERNANDEZ
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Marifi Bulaklak Hernandez and her minor son Carlos Bulaklak Hernandez (the "Applicants") seek judicial review of the decision of the Immigration and Refugee Board, Refugee Protection Division (the "Board"). In its decision dated August 14, 2003, the Board determined the Applicants not to be Convention refugees nor persons in need or protection.
[2] The Applicants are citizens of the Philippines and claim status in Canada as Convention refugees on the basis of membership in a particular social group, that is, business people and persons with family abroad who are targeted for extortion by the New People's Army (the "NPA"). The NPA is associated with the Communist Party and according to the Applicants, they engaged in extortion and serious human rights abuse, including kidnapping.
[3] The Board found that an internal flight alternative ("IFA") was available to the Applicants and their family members who remained in the Philippines.
[4] The Applicants argue that this finding by the Board is patently unreasonable because it is unsupported by the documentary evidence that was submitted by them.
[5] The certified tribunal record that was submitted by the Board in connection with this application for judicial review does not contain the material that was before the Board. Accordingly, the record is incomplete.
[6] The Respondent says that according to the affidavit of Camilla Jones who represented the Applicants at their hearing before the Board, all of the documentary evidence that was presented by the Applicants to the Board is contained in the Applicants' application record that is before this Court. The Respondent argues that there is no substance to the Applicants' argument that the insufficiency of the record undermines the Board's decision. The Respondent submits that this case can be distinguished from the facts prevailing in Parveen v. Canada (Minister of Citizenship and Immigration) (1999), 1 Imm. L.R. (3d) 305 (F.C.T.D.).
[7] In Parveen, supra, Justice Reed observed that the sufficiency of the record lies within the control of the Respondent, not that of an applicant seeking judicial review. In this case, the Applicants argue that the insufficiency of the record supports their challenge to the reasonableness of the Board's finding that an IFA is available.
[8] I agree with the Applicants' submission in this regard and the application for judicial review is allowed. The matter will be remitted to the Board for redetermination by a differently constituted panel. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted to a differently constituted panel for redetermination. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7417-03
STYLE OF CAUSE: MARIFI BULAKLAK HERNANDEZ ET AL.
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 1, 2004
REASONS FOR ORDER
AND ORDER: HENEGHAN J.
DATED: SEPTEMBER 3, 2004
APPEARANCES:
M. Max Chaudhary FOR APPLICANT
Rhonda Marquis FOR RESPONDENT
SOLICITORS OF RECORD:
Chaudhary Law Office
Toronto, Ontario FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
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