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Date: 20251127 |
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Docket: IMM-21788-24 |
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Citation: 2025 FC 1890 |
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Ottawa, Ontario, November 27, 2025 |
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PRESENT: The Honourable Justice Thorne |
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BETWEEN: |
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URBANS KARUMENDU
RITJARIPARERA KARUMENDU
ZEMISIRA KARUMENDU |
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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
I. Overview
[1] The Applicants, citizens of Namibia, seek judicial review of a decision [Decision] dated October 31, 2024 of the Refugee Protection Division [RPD] which found that they are not Convention refugees or persons in need of protection. The RPD specifically found that the Applicants had failed to rebut their presumption of state protection in Namibia. An appeal to the Refugee Appeal Division [RAD] was dismissed for lack of RAD jurisdiction.
[2] Though the Applicants do not address the RPD’s determinative state protection finding, they argue that the Decision is unreasonable or procedurally unfair because they assert that the RPD failed to proactively identify and consider a nexus ground of persecution that was not identified or raised by the Applicants in either their materials or during the RPD hearing.
[3] For the following reasons, this application is dismissed.
II. Background
[4] The Applicants are citizens of Namibia, and the Principal Applicant [PA], Urbans Karumendu, is the father of the two minor Applicants, Ritjariparera Karumendu and Zemisira Karumendu. The Applicant’s wife, who is not a party to this proceeding [Spouse], is the mother of the two minor Applicants. She entered Canada in August 2022 with the family’s three other children, where they all now live as protected persons, having secured this status in 2024 as a result of their own, separate refugee claims. She has since included the Applicants in her subsequent application for permanent residence.
[5] On January 25, 2024, the Applicants left Namibia and arrived in the United States of America, utilizing valid United States visas. The Applicants then crossed the border into Canada, where they made a refugee claim alleging persecution in Namibia. They claimed that they fear persecution from the uncles and brother of the Principal Applicant’s Spouse, due to an inheritance dispute between the Spouse and those members of her extended family. They stated that those parties believe that the Spouse was not entitled to the inheritance that she had received after the passing of her father, and accused her of hiding assets from them. The Applicants allege that it was harassment from those family members in relation to this issue which caused the Spouse and the other children to previously seek refugee protection in Canada. The Principal Applicant alleges that since his Spouse left Namibia, her uncles and brother, as they could no longer threaten her, instead began threatening him and the remaining children. He asserts that this, in turn, led the Applicants to flee to Canada, where they claimed asylum.
[6] Despite that the Applicants had entered Canada from the United States of America, the CBSA Officer reviewing their file determined that their claim was exempt from the Safe Third Country Agreement, given that the Applicants had a qualifying family member in Canada. Accordingly, their refugee claim was referred to the Refugee Protection Division.
[7] In their refugee claim, the Applicants alleged that the Principal Applicant’s Spouse had been repeatedly threatened and pressured by her uncles and brother in relation to the inheritance dispute. They allege that in addition to receiving threatening phone calls, the Principal Applicant’s spouse was ultimately assaulted by men sent by her family members. They also allege that those family members threatened their children, in order to exert pressure on the Applicant’s Spouse, with one of her uncles assaulting the family’s elder son over his sexuality, and for helping to hide the Applicant’s Spouse. In August 2022, the Applicant’s Spouse and two of their children then fled from Namibia to Canada, and the family’s elder son followed in December 2022. Those members of the family all received status in Canada in 2024, in separate asylum claims. The Principal Applicant alleges that following the departure of his Spouse, he had a series of heated arguments with members of his wife’s extended family, as he states that after they discovered that she had left Namibia, they turned their attention to him and accused him of helping her to leave.
[8] The Principal Applicant states that on two occasions, he was followed by unknown vehicles while driving. He states this first happened on the evening of November 27, 2022, and that when he arrived at a nearby town, he alerted the police but had not been able to provide any details as to the driver or the motive. He alleges that the police advised him to stay overnight in the town. The police were unable to do anything else as it was unclear who had followed him, but they invited him to return and report to them the next day if anything further happened. The Principal Applicant notes that he never contacted the police again, despite receiving a threatening call the next day. He also alleges that on December 17, 2023, he received another threatening call where the caller said they knew his “so-called wife and children”
left the country and that he had assisted them with the “estate money”
. The Principal Applicant states that the caller directly threatened him, saying that as he had assisted his wife to leave Namibia, and thus prevented them from recovering their estate, “they would come to deal with me.”
He also alleges that on January 4, 2024, while driving, he was followed again, and on that occasion also received a call from someone who said that they were in the car behind him. He notes that he thought the caller was the same party who had called before. When he returned home, he was informed by his workers that, while he was away, strangers had come to his home and asked about the whereabouts of his Spouse. The Principal Applicant states that, after this, he decided to flee to Canada with the remaining children.
[9] In its Decision, the RPD found the allegations of the Applicants to be credible, but determined that they were neither Convention refugees nor persons in need of protection pursuant to section 96 and Subsection 97(1) of the Act, because they had not rebutted their presumption of adequate state protection in Namibia. The RPD held that objective evidence established that as there was generally adequate state protection in Namibia, there was a relatively high burden on the Applicants to demonstrate that they had taken the steps to exhaust the various courses of action available to them seek the protection of the state. The RPD found that the evidence established that the Principal Applicant had only ever once approached the authorities, and that he had never done so again after the first time he had been followed while driving. It noted that the police had not been unhelpful on that occasion, and held that he had not exhausted the courses of action available to him to seek state protection.
[10] In coming to this Decision, the RPD also determined that the Applicant’s fears were not linked to a Convention ground that would enable them to seek refugee protection under section 96 of the Act, as their fears were instead based on “being victims of crime by in-laws who have a personal vendetta against the claimants”
. The RPD Member therefore proceeded to analyze the claim under section 97 of the Act, to determine if the Applicants might qualify as persons in need of protection. It found the Principal Applicant’s testimony straightforward, and that he had submitted documentary evidence, including an affidavit from the Applicant’s spouse that “corroborates important elements of the claimant’s allegations, namely, that she was physically assaulted, harassed, and threatened with death over an estate dispute by the same three individuals that the claimants fear.”
[11] However, as the RPD found that the Applicants had failed to rebut the presumption of adequate state protection in Namibia, the Member’s Decision ultimately rejected their claims.
[12] On November 21, 2024, the Applicants filed for judicial review of the RPD Decision.
III. Issues and Standard of Review
[13] The issues raised in this matter are as follows:
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Whether the decision under review is reasonable.
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Whether the RPD erred, and rendered the decision unreasonable or procedurally unfair, by failing to itself identify and consider a nexus ground of SOGIE persecution that was not identified or explicitly raised by the Applicants in either their materials or during the RPD hearing.
[14] The role of a court on judicial review is to examine the decision maker’s reasoning and determine whether the decision is based on an “internally coherent and rational chain of analysis”
and is “justified in relation to the facts and law that constrain the decision maker”
: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 85 [Vavilov]; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 64. The party challenging the decision bears the onus of demonstrating that the decision is unreasonable: Vavilov at para 100. To intervene, a Court must find an error in the decision which is “sufficiently central or significant”
to render the decision unreasonable: Vavilov at para 100. A reviewing court must thus assess “whether the decision bears the hallmarks of reasonableness —justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”
: Vavilov at para 99.
[15] Issues of procedural fairness, however, are reviewed on a correctness standard, or at least a standard akin to correctness: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54 – 56 [Canadian Pacific Railway Company]; Ramanathan v. Canada (Attorney General), 2023 FC 1029 at para 41 [Ramanathan]. As stated by Justice Blackhawk in Karimi v Canada (Citizenship and Immigration), 2024 FC 1674 at para 15 [Karimi] citing Chera v Canada (Citizenship and Immigration), 2023 FC 733 at para 13: “The reviewing court must consider what level of procedural fairness is necessary in the circumstances and whether the ‘procedure followed by the administrative decision-maker respect[s] the standards of fairness and natural justice’”
. In other words, a court must determine if the process followed by the decision maker “achieved the level of fairness required in the circumstances”
(Karimi at para 15 citing Kyere v Canada (Public Safety and Emergency Preparedness), 2020 FC 120 at para 23, citing with approval Mission Institution v Khela, 2014 SCC 24 at para 79 and Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at para 115).
IV. Positions of the Parties
[16] I note that in their materials and submissions the Applicants did not, in any way, address the state protection determination of the RPD. Instead, counsel for the Applicants essentially argues that the RPD erred in its analysis because it had failed to consider a different ground of persecution that was not explicitly raised at the hearing and which the claimant had not previously identified. The RPD had identified the family inheritance dispute as the underlying reason for the alleged harassment of the Principal Applicant’s Spouse, and by extension the Principal Applicant. This was in accordance with multiple statements to this effect in the Basis of Claim [BOC] documents, the BOC narrative and the RPD hearing testimony of the Principal Applicant, wherein he repeatedly explained that the family dispute over his Spouse’s inheritance was the reason she had been pursued, and why he was then confronted in her absence. However, in this judicial review, the Applicants now allege, for the first time, that the reason that the Principal Applicant (and his wife before him) were targeted by her family members was actually because their eldest son identified as LGTBQ. Counsel for the Applicants states that therefore the RPD erred in its assessment that there was no section 96 Convention Ground nexus, as it should have recognized that there was anti-SOGIESC discrimination and that the RPD had thus mischaracterized the nature of the events and threat to the Applicants.
[17] Counsel for the Applicants notes that in the Principal Applicant’s BOC narrative there is a sentence which states that among the misdeeds of the uncle of the Principal Applicant’s spouse was the fact that there had once been an occasion where he had assaulted the family’s elder son “because of his sexuality”
and because the uncle believed the son had helped to hide his mother. Counsel states that the Applicants were unrepresented before the RPD, and that the RPD had erred in not further questioning about this incident and analyzing to determine whether it was anti-SOGIESC discrimination that had underpinned the harassment of the Principal Applicant and his spouse. Indeed, counsel now asserts that this was indeed the reason for the persecution of those parties, making no mention whatsoever of the inheritance dispute in any of his materials before the Court. He asserts that the RPD’s failure address the issue of SOGIESC discrimination rendered the Decision both unreasonable and procedurally unfair.
[18] For its part, the Respondent submits that the arguments of the Applicant constitute an “an improper attempt to relitigate the claim based on new allegations”
. Citing Dhillon v Canada (Citizenship and Immigration), 2015 FC 321 at para 23 [Dhillon], they assert that the Applicants may not raise issues, allegations and evidence not previously raised before the RPD, and also note that Dhillon reaffirms that the RPD “cannot be faulted for not deciding an issue that had not been argued and that did not emerge perceptibly from the evidence presented as a whole.”
: para 23. The Respondent also argued, at some length, that there was no indication that the dispute in question concerned anything other than the Spouse’s inheritance, pointing out that in all of the evidence, arguments and documents presented to the RPD, including the BOC forms, narrative, the affidavit of the Principal Applicant’s spouse, and the hearing testimony of the Principal Applicant, the family inheritance was consistently portrayed as the sole basis of the risk of harm.
[19] The Respondent submits that there was nothing which indicated that the family members faced, recognized or claimed a risk of persecution because of the elder son’s SOGIESC identity. They also noted that at multiple points in his testimony the Principal Applicant, both in answer to questions and spontaneously, linked his family’s risk to the inheritance dispute and throughout the hearing never so much as mentioned the sexuality of the son. Indeed, the Respondent pointed out that even when the Principal Applicant revealed in the hearing that the son had been assaulted by the uncle, he said only that the young man had been asleep at the time, and had not mentioned the son’s sexuality, or indicated that this had anything to with the assault. The Respondent further noted that the Principal Applicant had certainly never indicated that this consideration was linked with his own harassment by the Spouse’s family members. Instead, the Respondent points out that this contention arose only after the RPD’s decision, and for the first time, before this Court.
[20] The Respondent also addressed the Applicant’s assertion that the brief mention in the BOC narrative that the uncle had assaulted the elder son “because of his sexuality”
should be found sufficient to find that the RPD had erred in not then asking further about this incident and inquiring into whether the son’s sexuality had somehow contributed to the persecution of the parents. In this regard, the Respondent submits that the RPD should not be faulted for not doing so, arguing this issue simply did not emerge perceptibly from all of the evidence that was presented, given that at every turn, it was the inheritance that was unfailingly portrayed as the basis of the agent of harm’s pursuit of the Principal Applicant and his spouse.
[21] Finally, the Respondent submits that with respect to the Decision, the RPD had reasonably found that the Applicants had not rebutted the presumption of adequate state protection, and had rightly considered the general adequacy of state protection in Namibia and the Principal Applicant’s failure to reasonably seek and exhaust his options, in this regard.
V. Analysis
A. The Decision is not unreasonable nor procedurally unfair
[22] Upon consideration of the record, I have little difficulty finding that the RPD Decision was neither unreasonable nor rendered in a procedurally unfair manner.
(1) Falsehoods in the Applicant’s Affidavit
[23] To begin with, I note that as a preliminary matter, it emerged during the hearing before this Court that the affidavit submitted by the Applicants contained a number of factual assertions that proved not to be true. In particular, the Principal Applicant’s affidavit declared at multiple points that the Principal Applicant had directly stated in his BOC narrative to the RPD that he “had been targeted [by the agents of harm] in Namibia as a result of my son’s sexuality”
and that “in my sworn BOC and narrative, I stated that I and my children, including my wife were targeted and mistreated as a result of our son’s sexuality as a gay man”
[emphasis added]. The affidavit was replete with a series of similar statements. Review of the BOC and its narrative established that these were not true, and that no such contention or evidence in support of it had ever been provided to the RPD. When questioned about this, counsel for the Applicants, before whom the affidavit had been sworn, eventually stated that he and his client had collaborated on the affidavit and had “embellished”
in it to be able to better argue their position.
[24] I have significant concerns as to the approach taken by counsel in submitting a sworn affidavit to the Court which contained information that was known to be untrue. Counsel was free in this proceeding to attempt to argue that the RPD should have seized upon the brief mention in the BOC narrative of the assault on the eldest son and contend that the RPD should have further considered whether antipathy as to the son’s sexuality had underpinned the alleged persecution of the Principal Applicant. It is another matter entirely to falsely represent to the Court that this argument was in fact previously presented to the RPD, in order to bolster the contention that the RPD had erred in not acting on this issue. This course of action by counsel calls into serious question the accuracy and reliability of not only the evidence in the affidavit, but also that of the other statements and arguments he has made to the Court on behalf of the Applicant. In addition, I note that as the affidavit in question was submitted as part of the Applicant’s initial application for leave and judicial review, I am particularly concerned that these falsehoods may well have contributed to the Court granting leave for the judicial review of this matter in the first place.
[25] Between the advertent falsehoods in the affidavit and the fact that I also find that the assertions contained in it are not based on personal knowledge and merely contain argument and opinion contrary to Rule 81(1) of the Federal Courts Rules, SOR/98-106 and Rule 12 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, I strike the affidavit in its entirety: Canada (Attorney General) v Quadrini, 2010 FCA 47 at para 18 [Quadrini], see also Abi-Mansour v Canada (Attorney General), 2015 FC 882 at para 30, recently cited by Justice Whyte Nowak in Alainn v Canada (Public Safety), 2025 FC 1729, at para 21. As was made clear in Quadrini at para 18:
As a general rule, the affidavit must contain relevant information which would be of assistance to the Court in determining the application. As stated by our Court in Dwyvenbode v. Canada (Attorney General), 2009 FCA 120, the purpose of an affidavit is to adduce facts relevant to the dispute without gloss or explanation. The Court may strike affidavits, or portions of them, where they are abusive or clearly irrelevant, [or] where they contain opinion, argument or legal conclusions…
(2) Claim that a SOGIESC Nexus underpinned the harassment of the Applicants
[26] In addition, I do not find that the RPD erred in not proactively extrapolating from the sole isolated mention of the uncle’s assault on the Principal Applicant’s son that antipathy toward the son’s sexuality was the true cause of the harassment the agents of harm directed toward Principal Applicant and his spouse. When taken out of context and viewed in isolation, the sentence in the narrative about the uncle’s assault can certainly be made to appear as if the homophobic attack may have had more far-reaching implications. However, when viewed in context and upon consideration of the entire record it is clear that all of the evidence, testimony and information presented before the RAD singularly and persistently identified the inheritance dispute as the only genesis for the harassment of the Principal Applicant.
[27] I acknowledge that the Principal Applicant, though a sophisticated party, was unrepresented before the RPD. I also note that in their submissions, the Applicants state that as unrepresented parties it should not have fallen to them to have to identify the reasons for their persecution. In support of this proposition, they cite Pastrana Viafara v Canada (Minister of Citizenship and Immigration), 2006 FC 1526 which referred to the reference in Canada (Attorney General) v Ward, [1993] 2 S.C.R. 689, at 725 [Ward] to courts taking guidance from paragraph 67 of the United Nations High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, UN Doc HCR/1P4/ENG/REV.3 [UNHCR Handbook, now at para 66 in the 2019 UNHCR Handbook]. This paragraph of the UNHCR Handbook directs that it is not the duty of the claimant to identify the reasons for their persecution.
[28] Though I acknowledge this important principle from Ward and the guidance from the UNHCR Handbook, I also find that in this matter, the nexus ground of sexual orientation did not “emerge perceptively from the evidence presented as a whole”
: Dhillon at paras 23 - 24 citing Guajardo-Espinoza v Minister of Employment and Immigration (FCA), [1993] FCJ No 797 (QL) [Guajardo] at para 5 referring to Pierre-Louis [sic] v M.E.I., [F.C.A., No. A-1264-91, April 29, 1993] at 3, recently cited by Justice Regimbald in Brahm v Canada (Minister of Citizenship and Immigration), 2025 FC 440 at para 20.
[29] Upon consideration of the record, it is clear this was not a situation where RPD merely overlooked a possible Nexus ground, or failed to countenance evidence suggesting that SOGIESC antipathy toward the elder son’s sexuality had triggered the persecution of his parents. Rather, this was an instance where all of the evidence and the direct assertions of the Principal Applicant himself instead unfailingly pointed to a wholly disparate reason as underpinning the harassment. Save for the false embellishment in the Applicants’ affidavit, there was simply no evidentiary basis on which to link the son’s sexuality to the persecution of the Principal Applicant, or that of his wife before him. Moreover, throughout the entirety of the RPD proceeding, nor was there even a suggestion that this was the case. In such a case, and on the specific evidence before me, I do not find that the SOGIESC rationale emerged perceptibly and so the RPD cannot be faulted for failing to seize upon it.
[30] The Federal Court of Appeal in Guajardo has recognized that such findings are “not inconsistent with the Supreme Court of Canada judgment in
Ward”
: para 6. Indeed, that Court’s finding in Guajardo is particularly apt, in a situation such as this, where there has been a sudden wholesale reorientation of the Applicants’ claim:
[5] With respect, the Court does not feel that the Applicants can ex post facto, that is once the Refugee Division decision has been rendered, change the nature of the argument they made to the tribunal based on one single sentence they took out of the file after fine tooth-combing it. As this Court recently said in Pierre-Louis [sic] v. M.E.I., [F.C.A., No. A-1264-91, April 29, 1993.] the Refugee Division cannot be faulted for not deciding an issue that had not been argued and that did not emerge perceptibly from the evidence presented as a whole. [Ibid., at 3.] Saying the contrary would lead to a real hide-and-seek or guessing game and oblige the Refugee Division to undertake interminable investigations to eliminate reasons that did not apply in any case, that no one had raised and that the evidence did not support in any way, to say nothing of frivolous and pointless appeals that would certainly follow.
[31] I find, in these particular circumstances, that the RPD’s determination with respect to the rationale for the alleged harassment of Applicants was reasonable, given the evidence before it, and further that this finding as to nexus does not violate the Applicants’ right to procedural fairness.
(3) State Protection
[32] Though the Applicants did not address the RPD’s determinative state protection finding in their materials or submissions, I note that I also find the RPD’s determination that the Applicants had not rebutted the presumption of state protection to be reasonable. The RPD essentially found that as the evidence established that the Principal Applicant had only once approached the authorities, who had not proven unhelpful, he had not exhausted the courses of action available to him to seek state protection.
[33] In assessing a refugee claim, states are presumed capable of protecting their citizens: Ward at 725. The refugee claimant bears the evidentiary and legal burden to rebut this presumption: Ward at pp 724–725; Flores Carillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at paras 17 – 19, 38 [Carillo]. However, the presumption of state protection may be displaced if the refugee claimant is able to adduce “clear and convincing evidence”
establishing that there was inadequate state protection on balance of probabilities: Ward at pp 692, 717, 724-725; Carillo at paras 24 – 30, 38.
[34] My colleague Justice Gascon has pithily summarized the principles of state protection in Cardenas Medina v Canada (Citizenship and Immigration), 2024 FC 388, where he noted:
[24] The onus rests on claimants to establish that their home state is unable to protect them (Notar v Canada (Citizenship and Immigration), 2021 FC 1038 at para 26; Glasgow v Canada (Citizenship and Immigration), 2014 FC 1229 [Glasgow] at para 35). In order to do so, claimants must provide clear and convincing evidence of the state’s inability to protect them, which will usually require them to show “that they sought, but were unable to obtain, protection from their home state, or alternatively, that their home state, on an objective basis, could not be expected to provide protection” (Hinzman at para 37; Glasgow at para 35). It is also not disputed that the appropriate test in a state protection analysis commands an assessment of the adequacy of that protection at the operational level, not solely the efforts or intentions of the state (Bishop at para 18; Mata v Canada (Immigration, Refugees and Citizenship), 2017 FC 1007 at paras 13–14; Vidak v Canada (Immigration, Refugees and Citizenship), 2017 FC 976 at para 8). The evidence must be “relevant, reliable and convincing” and must satisfy the decision maker, on a balance of probabilities, that state protection is inadequate (Flores Carrillo v Canada (Minister of Citizenship and Immigration), 2008 FCA 94 at para 30; Rstic v Canada (Citizenship and Immigration), 2022 FC 249 at para 29).
[25] For democratic countries, refugee protection claimants will normally have to demonstrate that they sought state protection. The more democratic the institutions, the more claimants must have done to exhaust all courses of action open to them, except in the event that they can show that it would likely have been futile for them to approach the state for protection, as protection would have been ineffective (Flores Carrillo at para 32; Vargas Bustos v Canada (Citizenship and Immigration), 2014 FC 114 at paras 31–32).
[35] In this matter, the RPD determined that as objective evidence established that Namibia was a functioning democracy with relatively robust protections for civil liberties and that law enforcement there was generally effective, the Applicants faced a relatively high burden to demonstrate that they had made appropriate efforts to exhaust all of the courses of action available to them to seek state protection. It held that the Applicants had failed to do this, given that the Principal Applicant had only once approached the authorities to report the issues he was facing, and then chosen not to do so again, despite having received adequate assistance on the sole occasion that he did. As a result, the RPD found that the Applicants had not successfully rebutted their presumption of state protection.
[36] The RPD’s finding in this regard demonstrates a clear and coherent chain of analysis, and this reasoning cannot be said to lack justifiability, intelligibility or transparency. It is not unreasonable.
[37] In sum, for the reasons above, I find that the Applicants have failed to establish that the RPD’s decision was unreasonable or procedurally unfair.
VI. Conclusions
[38] For the reasons set out above, this application for judicial review is dismissed. The parties proposed no question for certification, and I agree that none arises.
[39] Finally, as discussed with the parties during the hearing, without objection from the Applicants, and in accordance with Rule 303(2) of the Federal Courts Rules, SOR/98-106, the title of proceedings shall be amended to name each of the associate, minor Applicants, who were originally included as “Others”
in the application for leave and judicial review.
JUDGMENT in IMM-21788-24
THIS COURT’S JUDGMENT is that
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The application for judicial review is dismissed.
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No question of general importance is certified.
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No costs are awarded.
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The style of cause is amended to identify the associated Applicants by name.
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