Federal Court Decisions

IMM-3651-96

B E T W E E N:

BRANKO BLASKOVIC, VESNA BLASKOVIC,

HRVOJE BLASKOVIC, LUCIA BLASKOVIC

and BRANIMIR BLASKOVIC

Applicants

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

CAMPBELL J.

Let the attached transcript of my Reasons for Order delivered orally from the bench at Edmonton, Alberta, on August 20, 1997, now edited, be filed to comply with section 51 of the Federal Court Act.

Douglas R. Campbell

Judge

OTTAWA

September 18, 1997

THE COURT:

     In this case there is an onus on the applicants to show persecution. In fact, according to the findings of the Board, they succeeded in doing just that. The Board did accept that, as they have said in the record, that there is an element of risk of persecution should Mr. Blaskovic return to Velika Gorica, which is the place where the persecution problems were experienced when this man and his family lived there.

     The Panel then went on to say, though, that they thought that this particular place was one of the only places about which they were concerned. That is, the Panel went on to say that:

"The Panel finds that the claimants could return to other parts of the country."

     On this point about having to show that there is no Internal Flight Alternative, the onus does lie on the applicants. The Board in the following paragraph did not accept their evidence, and, in fact, made a finding of fact, and the operative passage is this:

"When asked why they could not move to another location in Croatia, their answers were not persuasive. The Panel does not find that the problems of registering with the authorities would prevent the claimants from relocating to such cities as Zagreb or other locations where they would be able to live as ordinary citizens of Croatia."

     In this respect, reference has been made in this case to Document R-2(1), which sets out the constitutional right of citizens of Croatia to move freely throughout the country and the Board placed great weight on this provision.

     The Board's finding imagines there is evidence on the record to say that a person in this man's situation, even though he might be persecuted in the town from which he came, would not be persecuted in:

"...such cities as Zagreb or other locations where they would be able to live as ordinary citizens of Croatia."

     Counsel for the respondent agreed or at least admitted that probably on the face of the record there is no such evidence. Frankly, all I can do is assume it is speculation, because unless it is stated on the face of the record, how could one make a finding of fact such as this? This, I find, is a very troublesome part of this decision.

     In addition, there are no reasons given for not accepting the answers that were provided by the applicants. There is simply a statement, bald-faced with no other details, that their answers were not persuasive, and I am also troubled by this.

     I find these two factors are reviewable errors. I think the applicants are entitled to have these factors cleared up. The Board has reasons to say that the evidence is not persuasive or indeed that there is evidence to say that there is somewhere inside of Croatia that they can be safe, and I think the Board has to state them. I will leave it to the Board to determine how to do that.

     This Order is set aside, and the matter is referred back to the Board for rehearing.