Background
Yony Arley Sepulveda Tamayo, a Colombian national, alleges he faced persistent threats from the FARC (Revolutionary Armed Forces of Colombia) following his mandatory military service in 2001. After relocating across Colombia and then to Venezuela — where he obtained permanent resident status in 2015, valid for five years — he returned to Colombia in 2018 when the FARC tracked him down in Venezuela. By 2019 the FARC had located him again in Colombia, forcing him into hiding for three years before he fled to Canada in 2022. Several of his siblings had already been granted refugee protection in Canada on similar FARC-related grounds.
Before the Refugee Protection Division (RPD), the Minister declined to intervene on the Article 1E exclusion issue, stating insufficient evidence existed to establish exclusion on a balance of probabilities. The RPD nonetheless raised the issue, and Tamayo’s first lawyer submitted post-hearing submissions that included what appeared to be a screenshot of an auto-generated Google search summary as evidence of Venezuelan residency law. The RPD dismissed Tamayo’s claim on both exclusion and credibility grounds. On appeal, a second lawyer raised conditions-based arguments and challenged the RPD’s legal reasoning, but did not allege the first lawyer’s incompetence or seek to introduce the siblings’ positive RPD decisions. The Refugee Appeal Division (RAD) dismissed the appeal on October 25, 2024, affirming the exclusion finding and adding fresh credibility concerns.
Tamayo then retained new counsel for this judicial review. New counsel identified potential failures by both prior lawyers and, pursuant to the Court’s consolidated practice guidelines, notified each of the concerns in writing. Both prior lawyers denied the allegations, and their responses were placed on the record.
The Court’s Holding
Justice Brouwer held that the RAD’s Article 1E exclusion analysis was unreasonable and set the decision aside. The RAD applied the three-part Zeng framework (Canada (Citizenship and Immigration) v Zeng, 2010 FCA 118) but erred at the third step by limiting its inquiry solely to whether Tamayo had established a well-founded fear of persecution or a section 97(1) risk in Venezuela. That framing was too narrow: the third step requires the decision-maker to balance all relevant circumstances — including conditions in the third country that fall short of the ss. 96/97(1) thresholds but may nonetheless constitute good reasons for a claimant not to return. The RAD’s failure to undertake that broader balancing exercise, despite clear evidence of Venezuela’s humanitarian crisis and an existing Administrative Deferral of Removal for that country, rendered its conclusion that Tamayo’s loss of status was “voluntary” unjustified, non-transparent, and unintelligible.
On the counsel-incompetence arguments, the Court declined to make definitive findings on procedural fairness, concluding that the record did not sufficiently establish that prior counsel’s omissions — including the failure to adduce siblings’ RPD decisions, the failure to obtain a full RPD transcript, and the submission of a Google screenshot as legal evidence — would have changed the outcome, or that the RPD lawyer had been given adequate opportunity to respond to all allegations. The Court expressly stated that its inability to find ineffective assistance on the current record should not be read as endorsing the quality of either lawyer’s representation, and noted that Tamayo may raise the allegations anew before the RAD if they are properly supported and comply with the tribunal’s guidelines.
The matter was remitted for redetermination by a different RAD panel. No question of general importance was certified.
Key Takeaways
- At the third step of the Zeng Article 1E exclusion test, decision-makers must balance all relevant circumstances, including conditions in the third country that fall below the ss. 96/97(1) risk thresholds; equating that step with a full refugee-risk analysis is a reviewable error.
- Evidence of a country-wide humanitarian crisis — including Canada’s own Administrative Deferral of Removal for that country — is directly relevant to whether a claimant had good reasons not to return to reacquire status, and must be weighed in the balancing exercise.
- A finding of no procedural unfairness due to counsel incompetence does not amount to judicial approval of counsel’s conduct; the Court signaled serious concern over conduct including reliance on a Google auto-summary screenshot as legal evidence and failure to review family members’ positive refugee decisions.
- Where ineffective-assistance allegations are raised on judicial review, prior counsel must be given a meaningful opportunity to respond to each specific allegation before a court will make adverse findings.
Why It Matters
This decision reinforces that the Article 1E exclusion analysis is a genuine multi-factor balancing exercise, not a proxy for a second refugee-risk determination. Adjudicators cannot short-circuit the third Zeng step by asking only whether the claimant has made out a ss. 96 or 97(1) claim in the third country; conditions that would not independently ground protection can still weigh heavily against exclusion. The ruling aligns with a line of Federal Court decisions — including Udroiu (2025 FC 902), Ru (2021 FC 1218), and Xu (2019 FC 639) — and signals that RAD panels must grapple with the full evidentiary picture when applying Zeng.
The Court’s pointed commentary on counsel conduct also serves as a practical reminder of the professional obligations owed to refugee claimants. Submitting auto-generated internet search results as evidence of foreign law, failing to obtain and review a complete hearing record before filing an appeal, and neglecting to investigate corroborating family-member decisions are flagged as conduct falling well short of the standard expected — even where those failures did not produce a definitive finding of prejudice on the existing record.