Docket: IMM-20888-24
Citation: 2025 FC 1997
Toronto, Ontario, December 18, 2025
PRESENT: The Honourable Mr. Justice A. Grant
|
BETWEEN: |
|
MILDRED LISBETH SERRANO CRUZ
GUSTAVO ADOLFO AVILES RODRIGUEZ
ANDRES FELIPE AVILES SERRANO
REBECKA ABIGAIL AVILES SERRANO |
|
Applicants |
|
and |
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
|
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] The Applicants, Mildred Lisbeth Serrano Cruz (the Principal Applicant), her husband Gustavo Adolfo Aviles Rodriguez, and their son Andres Felipe Aviles Serrano, seek judicial review of a decision by the Refugee Protection Division [RPD] to reject their claims for refugee protection under Immigration and Refugee Protection Act [IRPA] sections 96 and 97(1).
[2] For the reasons that follow, I believe that this application should be granted.
II. BACKGROUND
A. Facts
[3] The Applicants are citizens of Honduras who sought protection in Canada because they had been targeted for extortion by the Mara 18 gang.
[4] In January 2020, Ms. Cruz and Mr. Rodriguez decided to supplement their income by starting a business – which they called Serendipia – selling high-end makeup from their home in the Aurora neighbourhood of San Pedro Sula.
[5] In February of that year, three men arrived at their home and spoke to Mr. Rodriguez. They told him that they were members of the Mara 18 gang, which controls the Aurora neighborhood. They had come to extort payments from Ms. Cruz and Mr. Rodriguez in exchange for “protection”
of their business. Ms. Cruz and Mr. Rodriguez were warned by the gang members not to go to the police, because the police were allied with the gang.
[6] The Applicants felt they had no choice but to comply. They started making protection payments in March 2020, and continued doing so until July 2020.
[7] In June 2020, Mr. Rodriguez lost his job, which meant that the family no longer had enough money to meet the extortion demands.
[8] Gang members came to the Applicants’ home in August 2020 and told them that if they did not pay their entire outstanding debt that week, the gang would confiscate their merchandise and “something was going to happen…for playing with them.”
[9] The Applicants were very frightened by these threats, because killings related to gang extortion are common in Honduras. They decided to visit the United States for a few months in the hopes that the situation back home would cool off in their absence. They spent time with family throughout the United States from August 2020-January 2021.
[10] When they returned to Honduras in January 2021, they moved to a different neighbourhood in San Pedro Sula. They decided to re-establish their business because they had no other way of earning money at the time.
[11] By February 2021, the gang members realized that the Applicants had returned and resumed their business. They contacted the Applicants through Mr. Rodriguez’s mother, who still lived in the Aurora neighborhood. The gang threatened to harm Mr. Rodriguez’s mother and underage brothers if the Applicants didn’t make protection payments.
[12] In May 2021, Ms. Cruz started working remotely for a call centre and Mr. Rodriguez started working for a finance and technology company, meaning they were able to afford the protection payments from February 2021 to March 2022.
[13] By March 2022, Ms. Cruz was pregnant with their daughter, and the family could no longer afford to continue the protection payments alongside her medical bills.
[14] At the end of March 2022, the gang threatened to kill Mr. Rodriguez’s mother if the Applicants didn’t pay.
[15] In April 2022, Mr. Rodriguez lost his job, and later that month the Applicants decided to visit family in the United States again to let the situation at home calm down. In their basis of claim [BOC] narrative, Ms. Cruz states that “It was never [their] intention to leave Honduras for another country. [They] only went to the US to let things calm down.”
[16] Their daughter Rebecka was born during this visit to the United States.
[17] At the end of August 2022, the Applicants returned to Honduras and the Aurora neighborhood. In their narrative, the Applicants indicated that on this return they decided not to continue running their business to avoid any trouble with the gang. As will be noted below, this aspect of their story became an important factor in the rejection of their claim.
[18] At the end of April 2023, gang members came to the Applicant’s home and told them that they had to pay all their outstanding debts in two weeks, and that if they didn’t, “this time [they] were not going to escape.”
The Applicants explained that they no longer had their business, but the gang didn’t care.
[19] Throughout the month of April, the Applicants saw cars without licence plates outside their home and at Andres’ school.
[20] On May 1, 2023, the Applicants were driving when a car drove up quickly beside them. One of the occupants pulled out a gun and pointed it at them. The Applicants were able to escape by speeding into a gated neighborhood where some of their friends lived. That same night they received a call on their “business cell phone”
telling them they had five days to leave or “face the consequences.”
[21] The next day, the Applicants left San Pedro Sula and went to stay with family in Ceiba.
[22] By May 5, the Applicants decided that they had to leave Honduras because the gang knew where Mr. Rodriguez’s mother lived, and they have collaborators throughout the country. The Applicants filed a police report before leaving Honduras. They indicated that they filed the report, not because they had any confidence in the Honduran police to protect them, but in order to document what had happened to them.
[23] On May 12, 203 the Applicants left Honduras to stay with family in the United States. However, they did not want to make an asylum claim there because they considered it to be a “racist and violent country.”
Instead, they decided to seek asylum in Canada.
[24] The Applicants crossed the border at Niagara Falls on June 20, 2023, and made their asylum claim on June 21, 2023.
B. The Decision Under Review
[25] The Applicants’ claim was heard by the RPD on July 28, 2024, and it was rejected on September 13, 2024. In its reasons, the RPD made various findings related to the Applicants’ credibility.
[26] First, the RPD found that the Applicants provided inconsistent information as to when they closed their business. When asked at the hearing whether their home business was still open in 2023, Mr. Rodriguez said that they closed their business in March or April 2022 when they went to the US. This is inconsistent with the forms they completed at the port of entry [POE], which stated that the Applicants continued to operate their business from August 2022 to May 2023.
[27] The RPD found another inconsistency in the Applicants’ testimony as to whether they had ever relocated within Honduras. Mr. Rodriguez testified that when they returned to Honduras the first time, they moved to another part of San Pedro Sula. When asked whether they had moved anywhere else in Honduras, Mr. Rodriguez said no. According to the RPD, however, the Principal Applicant confirmed that they had gone to a place called La Ceiba in May 2023 after they were threatened. The RPD found this to be a material inconsistency.
[28] Next, the RPD found that the Applicants provided inconsistent information related to their forward-facing risk of harm. In testimony, the Applicants said that, after they had left for the US, the gang had visited Mr. Rodriguez’s mother in May 2023. However, this information was not provided in their BOC forms and, importantly, it was also not mentioned in a letter of support provided by Mr. Rodriguez’s mother.
[29] Fourth, the member found that it was not reasonable or credible that the claimants would leave Honduras and return multiple times if they had a genuine fear of persecution, or that their fear “crystalized”
after the incident with the firearm. Further, the member found that if the Applicants genuinely feared persecution in Honduras, they would have claimed asylum in the United States.
[30] Finally, the RPD found that the Applicants do not fit the profile of those the Mara 18 are motivated to target, in that they are neither former gang members, nor people with information sought by the gang.
III. ISSUES and STANDARD OF REVIEW
[31] The only issue in this matter is whether the RPD’s findings on credibility were reasonable.
[32] The parties do not dispute that the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 23 [Vavilov]. In conducting a reasonableness review, a court “must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified”
(Vavilov at para 15). It is a deferential standard, but remains a robust form of review and is not a “rubber-stamping”
process or a means of sheltering administrative decision-makers from accountability (Vavilov at para 13).
IV. ANALYSIS
A. Preliminary Matter: The Application of Rebecka Abigail Aviles Serrano
[33] As a brief preliminary matter, the original claim at the RPD included Ms. Cruz and Mr. Rodriguez’s daughter, Rebecka Abigail Aviles Serrano. However, she is a citizen of the United States and has made no claim against the United States. Therefore, the Applicants have consented to have her application dismissed.
B. The Applicants’ Business
[34] As outlined above, the Applicants’ case was based on the claim that they were targeted for extortion because of their small business. As such, the details they provided related to the operation of the business were at the core of their claim.
[35] The RPD recognized this and appears to have placed significant weight on the fact that the Applicants provided inconsistent information related to when they ceased to operate the business. The Applicants do not dispute that they provided inconsistent information; they do take issue, however, with the adverse inferences that the panel drew from the inconsistency.
[36] In their revised BOC narrative, the Applicants stated as follows:
At the end of August 2022, we returned to Honduras again to the Aurora neighborhood, but we decided not to continue with the business because we could not live that way.
The gang had told us that if we wanted to run a business we had to pay them to “protect” the business, and we believed that as long as we didn’t run a business our lives would return to normal.
[37] Similarly, during the hearing, Mr. Rodriguez testified that they had closed the business in March or April 2022 when they went to the United States, and that they did not reopen the business upon their return. However, in the forms that the Applicants completed when they initiated their claims for refugee protection, they indicated in several instances that they continued to operate Serendipia from August 2022 until May 2023.
[38] The member asked the Applicants to comment on this inconsistency, and they responded that because of their fear they had confused the dates. The RPD rejected this explanation and found that these inconsistencies undermined the Applicants’ allegation that they faced a risk of harm because of the extortion they faced with the business.
[39] Strangely, however, the RPD concluded that the Applicants had not operated their business after their return to Honduras in August 2022. This finding tends to confirm what the Applicants stated in their BOC – namely that they stopped running their business to avoid further extortion attempts. More confounding still is the fact that the record contains several other indications – which were not referenced by the RPD – that the Applicants had indeed continued to run their business after August 2022. For example, the Applicant’s BOC narrative states that in May 2023 the Applicants received a call on their “business cell phone”
and were told that they had five days to abandon their home or to face the consequences. The Applicants also provided screenshots of Instagram posts from their business from March 2023. Of most concern, however, is the police report that the Applicants provided in support of their claim, which states in part:
Upon returning to our home, the extortions began again within a few days, with threats to take our lives, so we continued paying the extortion money until April of this year, 2023. We were unable to continue paying because the business is not profitable and does not generate much money.
[40] The Applicants do not dispute that they provided inconsistent information in respect of the operation of their business. However, they argue that it was unreasonable for the RPD to heavily rely on the statements they made at the POE. This is because they were not represented at the time, and they were scared and confused. In any event, the Applicants argue that it was the fact of their business ownership (which was not disputed), and not the dates of its operation, that were of significance in this matter.
[41] The Applicants further state that they are left confused as to the RPD’s findings, given that it drew a negative credibility inference from the error in the POE forms while also accepting the information in their BOC narrative and sworn oral testimony that they did not operate the business after they returned to Honduras in August of 2022.
[42] Finally, while the Applicants did not dispute that there were other inconsistencies in the record concerning the operation of the business, they note that these were not findings made by the RPD, and this Court should not buttress the tribunal’s defective reasons, citing Vavilov at paragraph 96.
[43] The Respondent counters that it was entirely reasonable for the RPD to question the Applicants’ credibility based on the inconsistent information they provided as to their business. Operating the business was at the very core of the Applicants’ claim, and, as such, the inconsistencies between their POE statements and their subsequent testimony provided a reasonable basis on which to question their credibility.
[44] Ultimately, I agree with the Applicants. As noted above, the RPD’s reasons on this issue were somewhat muddled in that they accepted that the Applicants ceased operating their business in around March 2022, while questioning the Applicants’ credibility based on POE notes (which indicated they continued their business until May 2023). It was certainly open to the RPD to call into question the Applicants’ credibility in this regard, but in ultimately finding that they had closed their business, the tribunal accepted the premise that better corroborated their story. Having accepted this element of their claim, the purpose of the underlying credibility finding loses its footing.
[45] The Respondent suggests that there may have been a typographical error in this part of the RPD’s decision, but even apart from this possibility, it was reasonable for the RPD to expect consistent information in this important aspect of the Applicants’ claims. It was correspondingly reasonable, the Respondent argues, for the RPD to draw a general adverse inference from the Applicants’ inconsistencies on this point.
[46] It is unclear whether the RPD’s reasons on this issue contain a simple typographical error or reveal an irrational chain of analysis. Given the lack of transparency and intelligibility in the RPD’s reasons, I have concluded that this element of the RPD’s analysis was unreasonable.
[47] Despite the above, the Applicants’ victory on this issue may prove to be a hollow one when this matter comes to be reconsidered. As noted at paragraph 39, above, the RPD did not consider other details in the record that seriously call into question whether the Applicants did indeed refrain from running their business following their return to Honduras in August 2022. This was an important element of their claim, and the Applicants’ inconsistent evidence in this regard will have to be assessed by the new RPD panel on redetermination.
C. Internal Relocation to La Ceiba
[48] As noted above, the RPD found that the adult Applicants provided inconsistent testimony as to whether they moved to the area known as La Ceiba. This finding was clearly unreasonable. The RPD stated as follows:
When the claimants were asked if they moved anywhere else, the associate claimant testified that they were always in San Pedro Sula. Then the principal claimant was asked whether she moved to La Ceiba, she testified that in May when they were threatened, they visited her grandmother. When the inconsistency between her testimony and the associate claimant’s testimony was put to her, specifically that he testified that they had always been in San Pedro Sula, in response she testified that they did not move, and that after the attempt on their lives, that they went to La Ceiba only to take refuge because her grandmother lives in the mountain area.
[49] The only information before the RPD panel was that, after the Applicants were threatened on May 1, 2023, they briefly stayed with their extended family in La Ceiba where they filed their police complaint prior to their departure from Honduras on May 13, 2023. Given these circumstances, there was simply no basis for the RPD to find that the adult Applicants had provided inconsistent testimony. To state the obvious, the statement that the family had never moved from San Pedro Sula is entirely compatible with the subsequent statement that the family visited the Principal Applicant’s grandmother prior to their departure from Honduras. I agree with the Applicants that the RPD’s reasoning on this issue appears microscopic and overly attentive to immaterial differences in the language used by the adult Applicants: Abou Loh v Canada (Citizenship and Immigration), 2019 FC 1084; Alex-Alake v Canada (Citizenship and Immigration), 2021 FC 208; Apena v Canada (Citizenship and Immigration), 2023 FC 91.
[50] The problem with assessing witness testimony with “microscopic zeal” is that it can ‘reveal’ discrepancies that do not exist, or for which there is a reasonable explanation. Such findings break the chain of rationality in the reasoning process and are, as such, unreasonable.
[51] In reviewing the RPD’s findings on the question of the Applicants’ visit to La Ceiba, I have concluded that the tribunal fell into precisely this kind of unreasonable analysis.
D. Forward-Looking Risk and Omission from Mother’s Letter
[52] In contrast to the above, I find that it was reasonable for the RPD to find that the Applicants provided inconsistent information related to their forward-facing risk of harm. The statement that the Mara 18 visited Mr. Rodriguez’s mother in May 2023 is highly relevant to the forward-looking assessment of risk faced by the Applicants. This being the case, it was reasonable for the RPD panel to express concern over the failure to mention this event, either in the Applicants’ BOCs, or in the letter of support provided by Mr. Rodriguez’s mother.
E. The Applicants’ Returns to Honduras and Failure to Claim in the United States
[53] It was reasonable for the RPD to inquire as to why the Applicants had repeatedly gone to the United States and returned to Honduras. It was also reasonable for the RPD to inquire as to why the Applicants had not pursued an asylum application in the United States. Ultimately, however, I find that any conclusions on these inquiries are somewhat interconnected with the Applicants’ actions upon their returns to Honduras. If, in August 2022, the Applicants simply resumed their business, this may reasonably raise concerns as to whether they ever had a genuine fear of extortion. If, on the other hand, the Applicants closed their business and took other precautions following their latest return from the United States, such a fact may lead to a different conclusion. This being the case, and since I will be returning this matter for redetermination, I will refrain from further comment on this issue here.
F. The Applicants’ Profile
[54] I am also concerned with the RPD’s consideration of the documentary evidence. As noted above, the RPD found that the Applicants did not have the profile of those typically targeted by the Mara 18 because they are neither former gang members, nor people with information sought by the gang. As the Applicant points out, this finding of fact is overtly contradicted by documentary evidence that was specifically drawn to the attention of the RPD member in counsel’s closing submissions. The evidence includes the following:
Extortion is reported to be a principal source of income for most local gangs in Honduras and the refusal to pay extortion demands is usually construed by gang members as a serious act of resistance to the authority of the gang itself. Individuals who refuse to pay extortion demands – or who delay in meeting their ‘quotas’ because they are unable to pay – are reportedly subjected to threats and violence against them, as well as against their employees, business partners and family members. The threats and violence reportedly swiftly escalate with any continuing delay or refusal to pay, with persons in these circumstances reportedly commonly being killed by the gangs. Persons found by the gangs to have reported extortion demands to the authorities can reportedly expect severe retribution.
[55] The above is frankly difficult to reconcile with the RPD’s assertion that it is mainly present or former gang members or those who have important information about the gangs who are at risk from the Mara 18. It may have been open to the RPD to specifically find that the Applicants had failed to establish that they were small business owners who had been subject to extortion. It may also have been open to the RPD to find that the Applicants had failed to establish that they had reported the Mara 18 activity to the police. It was not, however, open to the RPD to ignore the evidence that those with such profiles face a significant risk of targeting by gangs in Honduras.
V. CONCLUSION
[56] The result of my analysis is somewhat of a mixed bag of conclusions. While certain aspects of the RPD decision were reasonable, other parts of its analysis were clearly unreasonable. In assessing the matter globally, with a view to the key characteristics of a reasonable decision, as set out at paragraphs 85 and 86 of Vavilov, I have concluded that the unreasonable aspects of the decision are sufficiently central that I must grant this application. The parties did not propose a question for certification and I agree that none arises.
Email this Content