Docket:
IMM-882-14
Citation: 2014
FC 953
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Toronto, Ontario, October 8, 2014
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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ALDO APOLO AQUINO GUARDADO
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LIZA MARIA MACHON DE AQUINO
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ALDO AQUINO MACHON
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicants are challenging the legality of a
decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee
Board of Canada, dated January 24, 2014, which upheld the decision of the
Refugee Protection Division [RPD] determining that the applicants were neither
Convention refugees nor persons in need of protection under sections 96 and 97
of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
The applicants are citizens of El Salvador who
fear returning to that country due to the problems experienced by applicant Aldo
Apolo Aquino Guardado resulting from the theft of his car by a businessman who
enjoys a great deal of political influence and the reprisals that followed his
attempts to obtain protection from the authorities. The RPD refused their claim
for refugee protection because it found the applicant not to be credible and
the RAD upheld that decision.
[3]
As was the case in several matters recently
brought before the Court, the main issue in this case was the RAD’s application
of a reasonableness standard of judicial review to the findings of fact and of
mixed fact and law in the RPD’s decision. For the reasons I set out in Alyafi
v Canada (Citizenship and Immigration), 2014 FC 952 [Alyafi], an
appeal before the RAD is not a judicial review and the RAD’s application of the
standard suitable for judicial review is not an acceptable outcome in respect
of the law.
[4]
I explained in Alyafi that there are
currently two competing approaches in decisions of this Court as to which
standard the RAD should apply to findings of fact and of mixed fact and law
made by the RPD. Without issuing any pronouncements on the scope of the review
that ought to be carried out by the RAD, suffice it to say that the applicants
were denied the appeal they were entitled to under the law, given that the RAD
instead applied a standard of judicial review. The matter will therefore be
referred back to the RAD for redetermination in light of the precedents of the
Court, including those I analyzed in Alyafi.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial review is
allowed. The impugned decision is set aside and the matter is referred back to
the Refugee Appeal Division for a reconsideration of the applicant’s appeal. No
question is certified.
“Luc Martineau”
Certified true translation
Sebastian
Desbarats, Translator
FEDERAL COURT
SOLICITORS
OF RECORD
DOCKET:
|
IMM-882-14
|
STYLE OF CAUSE:
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ALDO APOLO AQUINO GUARDADO, LIZA MARIA
MACHON DE AQUINO, ALDO AQUINO MACHON v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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PLACE OF HEARING:
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Montréal, QuEbec
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DATE OF HEARING:
|
septembEr 24, 2014
|
JUDGMENT
AND REASONS:
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MARTINEAU J.
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DATED:
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OCTOBER 8, 2014
|
|
|
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APPEARANCES:
Jorge Colasurdo
|
FOR
THE APPLICANTs
|
Edith Savard
|
FOR
THE RESPONDENT
|
SOLICITORS OF RECORD:
Jorge Colasurdo
Attorney
Montréal, Quebec
|
FOR
THE APPLICANTs
|
William F. Pentney
Deputy Attorney General of Canada
Montréal, Quebec
|
FOR
THE RESPONDENT
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