Diaz v. Canada (Citizenship and Immigration), 2005 FC 336

Date: 20050308

Docket: IMM-2314-04

Citation: 2005 FC 336

Toronto, Ontario, March 8^th, 2005

Present:           The Honourable Mr. Justice Campbell                                

BETWEEN:

                                                          JOSE VICENTE DIAZ

SANDRA PATRICIA BELTRAN MORALES

JOSE ESTEBAN DIAZ BELTRAN

SANTIAGO DIAZ BELTRAN

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                In the present case, the Principal Applicant, Jose Vincente Diaz, claims refugee protection on the basis of a well-founded fear of the Revolutionary Armed Forces of Columbia ("FARC"). The basis for the Principal Applicant's fear is that, if he is identified by FARC as a military reservist from an anti-guerrilla navel battalion, he will certainly suffer more than a mere possibility of persecution and probability of risk should he return to Columbia.

[2]                A central issue in the case before the Refugee Protection Division ("RPD") was whether the Principal Applicant could be identified by FARC as a military reservist. It is agreed that an established method of proving identification by men in Columbia is the production of their military reserve card. With respect to the Principal Applicant's card, the RPD found as follows:

The fact that he belonged to an anti-guerilla battalion does not put him at greater risk because this information does not appear on his military reserve card, so there would be no obvious clue if a guerilla group were to stop him.                

(RPD Decision, p .8.)

It is agreed that, given the evidence presented before the RPD of the contents of the Principal Applicant's card, the quoted finding of fact is erroneous. In my opinion the erroneous finding is central to the Applicants' claim for refugee protection. As a result, I find that the RPD's decision is rendered in reviewable error.

                                               ORDER

Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for redetermination.

           "Douglas R. Campbell"

                                                                                                   J.F.C.                      

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-2314-04

STYLE OF CAUSE: JOSE VICENTE DIAZ, SANDRA PATRICIA BELTRAN MORALES, JOSE ESTEBAN DIAZ BELTRAN, SANTIAGO DIAZ BELTRAN

Applicants

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING:                                 TORONTO, ONTARIO

DATE OF HEARING:                                   MARCH 8, 2005

REASONS FOR ORDER:                           

AND ORDER BY:    CAMPBELL J.

DATED:                     MARCH 8, 2005

APPEARANCES:

Gregory J. Lyndon       For the Applicants

John Loncar                 For the Respondent

SOLICITORS OF RECORD:

Gregory J. Lyndon      

Barrister & Solicitor     For the Applicants

Toronto, Ontario

John H. Sims, Q.C.     For the Respondent

Deputy Attorney General of Canada