TB8-32117

RAD File / Dossier de la SAR : TB8-32117 TB8-32118 TB8-32119 TB8-32120 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision June 11, 2019 Date de la décision Panel Pasquale Fiorino Tribunal Counsel for the persons who are the subject of the appeal Keith Macmillan Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (the Principal Appellant) and XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX (the Associate Appellants), citizens of Colombia, appealed a decision of the Refugee Protection Division (RPD), dated November 16, 2018, rejecting their claims for refugee protection. For the reasons which follow, I will substitute the decision of the RPD, pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA). BACKGROUND [2] The Appellants fear Los Urabenos, if they were to return to their country. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [3] For questions of fact, law, and mixed fact and law, I will apply the standard of correctness, as per Huruglica.1 [4] Accordingly, I will conduct my own analysis of the record to determine if the RPD erred. ANALYSIS ON THE MERITS OF THE APPEAL [5] The RPD concluded that all of the Appellants are citizens of Colombia and rejected their claims based on re-availment, credibility and internal flight alternative (IFA). [6] The Appellants allege that the Principal Appellant began to receive threats and demands for extortion in 2014 from Los Urabenos. Re-Availment [7] In XXXX of 2014, they moved to Sweden where they made a claim for refugee protection. Soon after their arrival in Sweden, XXXX began to exhibit symptoms of XXXX XXXX XXXX. Since the treatment for XXXX was not covered under their health care in Sweden, they decided to return to Colombia. The RPD concluded that their return to Colombia constituted a re-availment. I cannot agree with this conclusion. The Federal Court has stated that re-availment is not fatal to a refugee claim, if there are pressing reasons for the Appellants' return to their country.2 In this instance, I do find that the medical condition of XXXX was a pressing reason for the Appellants to return to Colombia. Credibility [8] The RPD concluded that the Appellants were not credible witnesses. However, it based its credibility concern solely on the events of 2014. I note that the Appellants presented evidence that the agents of persecution continued to threaten and extort them between XXXX of 2017 and XXXX of 2018. The RPD did not examine these particular allegations of the Appellants. Since I have no credibility issues with respect to these particular allegations, I must conclude that the Appellants' testimony is true. Therefore, I conclude that the Principal Appellant was threatened and extorted by the agents of persecution between XXXX of 2017 and XXXX of 2018. Internal Flight Alternative [9] The RPD concluded that the Appellants have a viable IFA in the city of Tunja, Boyaca. The RPD found that the agents of persecution do have the capacity to track down individuals within Colombia, but it concluded that they did not show enough interest in the Appellants. I cannot agree with this conclusion. The evidence of the Appellants is that the Principal Appellant was continuously threatened from XXXX of 2017 to XXXX of 2018. In my view, this demonstrates that the agents of persecution do have an interest to track down the Appellants throughout Colombia. DECISION [10] Pursuant to paragraph 111(1)(b) of the IRPA, the RAD sets aside the determination of the RPD and substitutes its determination that the Appellants are persons in need of protection. The appeal is allowed. (signed) "Pasquale Fiorino" Pasquale Fiorino June 11, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Caballero, Fausto Ramon Reyes v. M.E.I., (F.C.A., no. A-266-91), Marceau, Desjardins, Letourneau, May 13, 1993; Rodriguez, Carlos Alberto Servellon v. M.C.I., (F.C.T.D., no. IMM-2815-01), Beaudry, March 20, 2002, 2002 FCT 292. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-32117 TB8-32118 TB8-32119 TB8-32120 RAD.25.02 (April 04, 2019) Disponible en français 3 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.25.02 (April 04, 2019) Disponible en français