TB6-05217

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB6-05217 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision August 10, 2016 Date de la décision Panel Pasquale Fiorino Tribunal Counsel for the person(s) who is(are)the subject of the appeal Michael F Loebach Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant, XXXX XXXX XXXX XXXX, is a citizen of Colombia and of Venezuela, and appeals a decision of the Refugee Protection Division (RPD) dated March 1, 2016, rejecting his claim for refugee protection. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and find that the Appellant is either a Convention refugee or a person in need of protection, or that the RAD refer the matter back to the RPD for reconsideration. Determination [2] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a person in need of protection. Background [3] The Appellant, his wife and their children claimed refugee status in Canada due to threats which they had received in Colombia from the Revolutionary Armed Forces of Colombia (FARC). The RPD found that the Appellant and his wife were credible witnesses that they had been targeted by the FARC and that state protection would not be available to them if they were to return to Colombia. The RPD granted refugee status to the Appellant's wife and their children but did not grant refugee status to the Appellant because, having been born in Venezuela, he is entitled to citizenship in Venezuela. ROLE OF THE RAD [4] The RAD finds that the recent Federal Court of Appeal decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. The Appellant justices stated at paragraphs 103 and 106: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [106] In light of paragraphs 23 and 24 above, I would reformulate the certified question as follows: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD's findings of fact (or mixed fact and law), which involved no issue of credibility? Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. [5] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. MERITS OF THE APPEAL [6] After finding the Appellant to have been a credible witness and that he had been threatened by the FARC, the RPD concluded that there was no evidence that the threats would extend beyond Colombia and that he safely return to Venezuela, the country of his birth. The RPD found that the FARC does operate in Venezuela; it concluded that "... there is insufficient persuasive evidence which indicates that the Colombian FARC pursues specific individuals from Colombia to Venezuela."2 [7] The Appellant argues that the conclusion of the RPD is purely speculative. He also argues that if there is no evidence that the FARC would pursue the Appellant in Venezuela, there is also no evidence to the contrary.3 In support of its submission, the Appellant relies on the Federal Court decision of Builes4 where the court found that the RPD had erred in speculating without any basis. [8] The RAD agrees with the submissions of the Appellant. Although the RAD agrees that the Appellant is entitled to Venezuelan citizenship, the RPD speculated with respect to whether the FARC, which the RPD found operated in Venezuela, would pursue the Appellant in Venezuela. The RPD reached its conclusion without providing any documentary evidence for its position. [9] The RAD therefore cannot uphold the decision of the RPD. DECISION [10] Pursuant to Section 111(1)(b) of the Immigration and Refugee Protection Act, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellant is a person in need of protection. [11] The Appeal is allowed. (signed) "Pasquale Fiorino" Pasquale Fiorino August 10, 2016 Date 1 M.C.I. v. Huruglica, Bujar 2016 FCA 93 2 Exhibit P-2, Appellant's Record, at p. 9, para 25. 3 Exhibit P-2, Appellant's Record, at pp. 543-544. 4 Builes, Sandra v. M.C.I. (F.C., no. IMM-3334-15), Phelan, February 17, 2016, 2016 FC 215. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB6-05217