Docket: IMM-2268-16
Citation:
2016 FC 1258
Toronto, Ontario, November 10, 2016
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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ALEXANDER
CORREA URBANO
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JUAN ESTEBAN
CORREA RENGIFO
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MARIA FERNANDA
RENGIFO VELASCO
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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, Alexander Correa Urbano and
Maria Fernanda Rengifo Velasco, and their young son, Juan Esteban, are citizens
of Colombia, who claim refugee protection in Canada based upon a fear of
persecution by the Revolutionary Armed Forces of Columbia [FARC].
[2]
This is a judicial review application of a
Refugee Appeal Division [RAD] decision of May 13, 2016, which upheld the
decision of the Refugee Protection Division [RPD], finding that the Applicants
are not Convention Refugees, or persons in need of protection, under sections
96 and 97 of the Immigration and Refugee Protect Act, SC 2001, c 27.
This was the second RAD decision for these Applicants. The earlier RAD decision
was set aside by this Court. For the reasons that follow, this application is
granted. The RAD’s finding that the Applicants had to provide evidence as to
the identity of their agents of persecution is not reasonable.
I.
Standard of Review
[3]
RAD decisions are reviewed on the reasonableness
standard (see Canada (Citizenship and Immigration) v Huruglica [Huruglica],
2016 FCA 93 at para 35 and Dunsmuir v New Brunswick, 2008
SCC 9 at paras 48 and 47).
II.
Issues
[4]
The determinative issue is whether the RAD acted
reasonably in its approach to the evidentiary burden imposed on the Applicants
with respect to the identification of their agents of persecution.
III.
Analysis
[5]
Refugee claimants need only prove that there is
a “reasonable chance” or “more than a mere possibility” or “good grounds for believing” that they will face
persecution (See Alam v Canada (Minister of Citizenship and Immigration)
[Alam], 2005 FC 4 at para 5, and Adjei v Canada (Minister of
Employment & Immigration) [Adjei], [1989] 2 F.C. 680 at para 8).
[6]
The evidence before the RAD was that while
living in Colombia, the adult Applicants were active members of a human rights
organization (Fundeci or Funddeci) and worked in rural
communities with internally displaced and marginalized persons, most of who had
been displaced by the guerilla organization FARC. Their activities included distribution of humanitarian aid and informing people of their legal
rights and participating in marches and actions for peace. The RAD accepted
this evidence.
[7]
The RAD also had evidence of violence and
threats against the Applicants as follows:
•
In 2011, the male Applicant was attacked and
robbed;
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In February 2014, the male Applicant was
verbally threatened;
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On May 1, 2014, the tires of the male
Applicant’s vehicle were slashed;
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On May 19, 2104, the Applicants received an
envelope at their home with a threat and a picture of them participating in a
demonstration; and
•
On May 22, 2104, while traveling to another
city, the Applicants received a threatening telephone call.
[8]
The Applicants left Colombia in June 2014 and
claim to have been targeted with these threats and acts of violence by the FARC
or agents of FARC, because of their involvement with Funddeci.
[9]
On review from the RPD, the RAD was required to
carry out its own analysis of the evidence (Huruglica para 103). Here,
the RAD concludes at paragraph 19 “…they present no
evidence that the individuals who threatened them or caused damage to their
property even identified themselves as members of the FARC.” The
Applicants’ testimony and documentary evidence is in contrast to the conclusion
of the RAD that there is “no” evidence. The RAD
does not explain why the Applicants’ evidence is not accepted or why it is not
sufficient to show that they have “more than a mere
possibility” or “good grounds for believing”
that they will face persecution by FARC (See: Alam and Adjei).
[10]
In finding that there was “no” evidence, the RAD imposed a heightened
evidentiary burden upon the Applicants. This renders the RAD’s decision
unreasonable.
[11]
Further, the RAD’s
conclusion that the Applicants have an internal flight
alternative is also unreasonable, as it is premised on the finding that FARC
are not the agents of persecution.
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