Docket: IMM-3475-25
Citation: 2026 FC 223
Toronto, Ontario, February 18, 2026
PRESENT: The Honourable Madam Justice Furlanetto
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BETWEEN: |
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LUIS EDUARDO ARRECHEA SINISTERRA
FERNANDO ARRECHEA SINISTERRA |
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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 |
JUDGMENT AND REASONS
[1] This is an application for judicial review of a January 21, 2025 decision [Decision] of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada [IRB] that determined the Applicants were not Convention refugees nor persons in need of protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The RAD found the Applicants were excluded under the combined effect of Article 1E of the Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS 137 [Article 1E] and section 98 of the IRPA.
[2] For the reasons set out below, I find that the Applicants have not raised a reviewable error and as such, the application is dismissed.
I. Background
[3] The Applicants are brothers who are Afro-descendant citizens of Colombia. They allege a fear of persecution from paramilitary groups in Colombia, including the Autodefensas Unidas de Colombia [AUC] and the Clan de Golfo [Gulf Clan].
[4] The Principal Applicant, Luis Eduardo Arrechea Sinisterra [PA], alleges that he fled Colombia for Chile in 2013 because of threats and extortion from paramilitary groups like the AUC and Gulf Clan. The Associate Applicant, Fernando Arrechea Sinisterra [AA], alleges that he relocated to Chile in 2011 after his daughter was beaten up by a paramilitary member. Both Applicants eventually received permanent residence [PR] status in Chile.
[5] The Applicants assert that the AUC and Gulf Clan have continued to threaten them and their families over the past several years while in Chile. In 2016, the PA’s wife was shot in what the Applicants believe was a targeted attack. In 2018, the Applicants’ brother was murdered by a known Gulf Clan member. The PA states that he was blamed for the capture of Gulf Clan members in 2019, which renewed threats against him, and that he received a written death threat in Chile in January 2022. The PA states that his niece’s husband was murdered in Chile in 2023 and that his wife has been threatened.
[6] In January 2022, the Applicants went back to Colombia and then left again in February 2022. The Applicants travelled through several countries and arrived in Canada in May 2022.
[7] Each Applicant has a spouse and a Chilean born child under the age of eighteen that still reside in Chile. In January 2024, the Applicants lost their PR status in Chile because they left and did not return for two years.
[8] In April 2024, the Refugee Protection Division [RPD] found the Applicants were excluded from refugee protection under the combined operation of Article 1E and section 98 of the IRPA because they could regain their PR status in Chile. Article 1E provides that:
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This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
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Cette Convention ne sera pas applicable à une personne considérée par les autorités compétentes du pays dans lequel cette personne a établi sa résidence comme ayant les droits et les obligations attachés à la possession de la nationalité de ce pays.
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[9] Section 98 of the IRPA states that:
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A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection.
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La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.
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[10] An appeal to the RAD of the RPD decision was dismissed.
[11] In the Decision, the RAD conducted an analysis under Article 1E by applying the test for exclusion in Zeng v Canada (Minister of Citizenship and Immigration), 2010 FCA 118 [Zeng] at paragraph 28:
[28] Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada’s international obligations, and any other relevant facts.
[12] The parties do not dispute the application of Zeng or the RAD’s findings with respect to the first two parts of the Zeng test, namely that the Applicants previously held PR status in Chile but lost their PR status by the time the RPD hearing concluded. The dispute relates to the third part of the Zeng test, which involves balancing several factors. The Applicants raise three issues:
[13] The parties assert, and I agree, that the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]; Singh v Canada (Citizenship and Immigration), 2024 FC 1964 at para 7; Matondo v Canada (Citizenship and Immigration), 2024 FC 374 at para 16. A reasonable decision is one that is “based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”
: Vavilov at paras 85. A decision will be reasonable if when read as a whole and taking into account the administrative setting, it bears the hallmarks of justification, transparency, and intelligibility: Vavilov at para 99.
II. Analysis
A. Did the RAD err in finding the Applicants were prima facie excluded under Article 1E because they could regain PR status in Chile?
[14] In the Decision, the RAD found the Applicants could regain PR status in Chile under the MERCOSUR agreement and through an application for family reunification. As stated by the RAD:
[20] […] According to country condition evidence, countries belonging to the Southern Common Market (Mercado Común del Sur / MERCOSUR), which include Colombia and Chile, have signed a residence agreement. This agreement sets out that citizens of a MERCOSUR state do not require a visa to enter another member state; only proof of citizenship in member state is required. The agreement gives citizens of MERCOSUR countries the right to reside and work in another member state for a maximum of 2 years, after which they are eligible to apply for permanent residence in the member state. Country condition evidence also indicates that the Appellants would be able to apply for temporary resident status and then permanent resident status in Chile on the basis of family reunification. The PA has a son who was born in Chile in July 2022, and resides in Santiago with the PA’s wife. The AA has a daughter born in Chile in 2017, and resides in Santiago with the AA’s wife.
[footnotes excluded]
[15] The Applicants argue that approval through each of these means is not automatic but is subject to discretionary review and could be denied, especially because of their absence from Chile and the revocation of their previous PR status.
[16] As set out in the IRB’s Responses to Information Requests [RIR] ZZZ201445.E from the National Documentation Package for Chile, which was cited by the RAD, to obtain PR status through the MERCOSUR agreement, a citizen of a member state must first obtain temporary resident status for two years. An individual may thereafter obtain PR status by applying within 90 days of expiry of their temporary resident status and providing identity documents, a police certificate, proof of lawful means of subsistence, and payment of a service tax.
[17] RIR ZZZ201445.E states that Chile is an associate member of the MERCOSUR agreement. It notes with reference to other reports that Chile has not incorporated the MERCOSUR agreement into their legal system, instead applying an “administrative application”
of the agreement to citizens from a limited group of countries. As stated in RIR ZZZ201445.E:
Argentina, Bolivia, Colombia, Peru and Uruguay comply with the immigration standards that apply to all the countries of the Agreement. Brazil and Ecuador are in the same situation, having recently (2017) approved new immigration regulations that are in the process of being fully regulated and applied. Two countries have different regulations: Paraguay, which nevertheless applies the Agreement to all signatory countries, and Chile, which applies it with limited scope. (UN 2018-01, 36)
The IOM report also indicates that the residence agreement [translation] “has not been incorporated into the Chilean legal system, [but rather] what exists is an administrative application of the agreement” (UN 2018-01, 34). According to the same source, Chile created a temporary MERCOSUR visa [in 2015 (MPI 2022-05-18)] available to citizens of Argentina, Bolivia, Brazil, Paraguay, and Uruguay, and for which applications must be made from within Chile (UN 2018-01, 35).
[emphasis added]
[18] The reference cited within RIR ZZZ201445.E (MPI 2022-05-18, which is an article from the Migration Policy Institute titled “Chile’s Welcoming Approach to Immigrants Cools as Numbers Rise”), states that Chile has only partially implemented the MERCOSUR agreement and does not apply the agreement to citizens of Colombia:
Chile has only partially implemented the Mercosur Residence Agreement
, instead offering until new reforms were enacted in early 2022 a parallel Mercosur temporary visa, created in 2015, for which citizens of original Mercosur Member States (Argentina, Bolivia, Brazil, Paraguay, and Uruguay) could apply from within Chile but not at Chilean consulates abroad. Unlike other countries in the agreement, Chile does not apply the Mercosur agreement to citizens of Colombia, Ecuador, or Peru
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[emphasis added]
[19] In my view, the RAD erred by not considering the implementation in Chile of the MERCOSUR agreement to citizens of Colombia before concluding that the MERCOSUR agreement was a viable option for the Applicants to obtain PR status. However, I do not find this error sufficient to set aside the Decision. As noted, the RAD also identified an alternative route to obtain PR status through family reunification.
[20] According to RIR ZZZ202039.E, also cited by the RAD, PR status based on family reunification is available to any foreign national who is a parent of a Chilean child under the age of eighteen. The foreigner must first obtain a temporary resident permit and within 90 days of its expiry, may apply to obtain PR status by providing identity documents, a police certificate, and paying a service tax.
[21] The Applicants do not dispute that they hold the required identity documents, that they have children that were born and reside in Chile who are under the age of eighteen, and they do not indicate that they have a criminal record. However, they argue that they will require a longer period of residency to obtain PR status (Article 65 of Decree No. 296, referenced within RIR ZZZ202039.E), and will need to demonstrate financial stability, legal compliance, and ties to Chile. They assert this may be difficult as they have no recent ties to Chile’s labour market and economy, and that further persecution from the Gulf Clan could lead to instability and displacement.
[22] As noted by the Respondent, the Applicants have the burden of establishing “in truth and fact”
that the options identified by the RAD are not open to them: Kumuena v Canada (Citizenship and Immigration), 2025 FC 277 at para 16; Paul v Canada (Citizenship and Immigration), 2022 FC 54 at para 19.
[23] Here, there is no assertion nor evidence to suggest that the Applicants are unable to engage in lawful employment in Chile.
[24] Further, while the RAD was obliged to consider the Applicants’ risk in the relevant third country (here, Chile) (Exavier v Canada (Citizenship and Immigration), 2024 FC 1240 at para 27; Lauture v Canada (Citizenship and Immigration), 2023 FC 1121 at paras 36-37), the contention that persecution from the Gulf Clan would continue and could lead to difficulties and to the Applicants’ displacement in Chile was speculative and did not consider the available state protection as noted by the RAD.
[25] Although steps will be required to obtain PR status, based on the requirements identified for obtaining PR status through family reunification, I cannot conclude that this option is unavailable to the Applicants.
[26] Thus, although I find the RAD’s analysis relating to the MERCOSUR agreement incomplete, the RAD’s finding that the Applicants could regain PR status in Chile through family reunification was reasonable.
B. Did the RAD err in finding there was adequate state protection in Chile?
[27] In the Decision, the RAD found that the presumption of state protection was not rebutted and that adequate state protection was available to the Applicants.
[28] The Applicants argue that the RAD placed an excessive burden on them to prove that the Gulf Clan was responsible for the attack on the PA’s wife and the murder of the AA’s son-in-law, which was unrealistic given the nature of the criminal organizations involved. They assert that the RAD failed to recognize a pattern of violence consistent with the country condition evidence relating to the Gulf Clan.
[29] As noted by the RAD, “[a] claimant who alleges that there is inadequate state protection bears the onus of rebutting the presumption with ‘clear and convincing’ evidence”
: Canada (Attorney General) v Ward, 1993 CanLII 105 (SCC) [Ward] at 726. This burden of proof “is proportional to the level of democracy in the state”
, with a claimant needing to do more to exhaust state protection with a more democratic state. The analysis of state protection requires a contextual approach that considers country condition evidence, the nature of the harm, the profile of the alleged agent of harm, the efforts the claimant made to seek protection and the response of the authorities: Gonzalez Torres v Canada (Citizenship and Immigration), 2010 FC 234 at para 37.
[30] The RAD acknowledged the Applicants’ belief that the Gulf Clan was responsible for a series of events that included: a) the PA’s wife being shot in 2016 and her receiving threatening messages in 2019; b) the Applicants’ brother being murdered in 2018; c) the AA’s son-in-law being murdered in 2023 and his daughter receiving a threatening phone call after his death; and d) threatening messages to the PA prior to him testifying about his brother’s murder. However, the RAD found that there was insufficient evidence relating to the shooting of the PA’s wife, and inconsistent evidence relating to the AA’s son-in-law’s murder and the threatening message to the AA’s daughter to associate those events with the Gulf Clan, or any particular agent of harm.
[31] The RAD considered the state response to the PA’s report that the Gulf Clan murdered his brother to be effective, as it resulted in the individual who was suspected being charged, convicted, and ultimately imprisoned. The PA testified that the police were helpful when the murder was reported, and the Applicants testified that they did not experience discrimination based on their profiles as Afro-descendants then, or at any time while in Chile.
[32] In view of this example of state assistance, the RAD considered that it would have been appropriate for the Applicant to seek state protection in association with the other alleged threats and harms experienced and significant that they had not done so. I see no error in this analysis nor any inconsistency with the approach discussed in Marinaj v Canada (Citizenship and Immigration), 2020 FC 548 at paragraphs 62-67. As highlighted by the Supreme Court of Canada in Ward, there cannot be a failure of state protection where a government has not been given an opportunity to respond to threats in circumstances where protection may have been forthcoming: Ward at 723-724, citing James C Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991) at 130.
[33] The Applicant argues that the RAD’s findings on state protection did not consider whether state protection is operationally effective, nor does the evidence establish this. They assert that the evidence suggests otherwise, in view of the large number of violent events that have happened to the Applicants and their families.
[34] However, the RAD’s reasons indicate that they did consider the series of events referenced by the Applicants but did not find a common thread between the events, nor any evidence that the state was not in control of its citizens or that it was not making serious efforts to protect its citizens. As noted by the RAD, state protection is not required to be perfect; the question is one of operational adequacy: Canada (Minister of Employment and Immigration) v Villafranca, 1992 CanLII 8569 (FCA) at para 7.
[35] The RAD considered the country condition evidence but found while there were some incidents of abuse and corruption, Chilean authorities generally maintained effective control over its citizens and public confidence in Chilean authorities had more recently increased. The RAD acknowledged an increasing presence of drug trafficking organizations in South America and the ability of such organizations to evolve and adapt, which poses difficulties for authorities to prosecute and punish organized crime groups. However, the RAD found there was no institutional corruption scheme and found the evidence supported the view that reports of individual targeting by an organization would not be ignored. In view of its review of evidence, it concluded that state protection was available.
[36] I agree with the Respondent, the Applicants’ arguments amount to a request for the Court to reweigh and re-evaluate the evidence. However, this is not the role of the Court on judicial review: Olusola v Canada (Citizenship and Immigration), 2020 FC 799 at para 39.
[37] The Applicants have not established a reviewable error.
C. Did the RAD err in finding that the Applicants had lost their PR status in Chile voluntarily?
[38] The Applicants take issue with the RAD’s finding that they voluntarily lost their PR status in Chile. They assert that they did not leave Chile by choice but out of necessity due to ongoing threats from the Gulf Clan.
[39] However, as noted by the RAD, the circumstances surrounding the Applicants’ departure were affected by the Applicants failure to make efforts to access state protection. Having not made those efforts, the RAD concluded that the Applicants still had options available to them and therefore their departure from Chile could not be considered involuntary. In my view, this conclusion rationally follows from the RAD’s analysis on state protection and is accordingly reasonable.
[40] As the Applicants have not identified a reviewable error, the application is dismissed.
[41] There was no question for certification proposed by the parties, and I agree none arises in this case.
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