JUDGMENT AND REASONS

[1] The applicants are citizens of Argentina and are challenging the decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board rendered on September 15, 2022, confirming the determination of the Refugee Protection Division [RPD] that the applicants are neither Convention refugees nor persons in need of protection. The application for judicial review is allowed for the reasons that follow.

I. Overview

[2] The principal applicant [the PA] alleges that he was being persecuted because of his activities with the [translation] “schoolboard union” (Sindicato Unido de Trabajadores de la Educación – SUTE) in Argentina. He fears retaliation from the president of the political party called the [translation] “Radical Civic Union” (Unión Cívica Radical - UCR), Alfredo Cornejo. All the applicants started being harassed because of the PA’s political activities.

[3] The RPD rejected the claim essentially on grounds of credibility, and the RAD confirmed the RPD’s determination. The most relevant material facts on which the RPD based its negative decision, considered correct by the RAD, are as follows:

1. The PA did not credibly establish the identity of his agent of persecution;

2. The PA did not credibly establish his role within the union; and

3. The PA’s spouse did not credibly establish that a car accident she had been in was deliberate and had been ordered by the PA’s agent of persecution.

[4] The applicants attempted to file the following additional documents before the RAD, which only accepted the last of these documents, namely, the psychological report:

1. A notarized statement by Sebastián Henríquez, dated June 11, 2022. Sebastián Henríquez was the former secretary general of the union and provided information about the PA’s role within the union and about the agent of persecution. He also explained that he had not provided the statement earlier because of his own psychological state.

2. A document concerning non-wage agreements – education sector, Sebástian Henríquez and others, dated December 19, 2018;

3. Copies of WhatsApp communications, Diego Pascual, dated May 26, 2022; and

4. A psychological report (Estela Garciela Barrera Cornejo), Dr. Marta Valenzuela, dated June 14, 2022. The RAD accepted this report and its conclusions that the PA suffered from post-traumatic stress disorder.

II. Standard of review

[5] The parties submit, and I agree, that the standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII), [2019] 4 S.C.R. 653 [Vavilov]).

[6] The applicants’ arguments are based on the following elements:

1. It was unreasonable for the RAD to rely on the RPD’s analysis to assess credibility;

2. It was unreasonable for the RAD to reject the refugee protection claimants’ arguments that there was a reasonable apprehension of bias on the part of the RPD member; and

3. It was unreasonable for the RAD not to accept the new evidence, specifically, Sebástian Henríquez’s statement.

III. Decision

[7] I allow the application for judicial review because it was unreasonable for the RAD not to accept Sebástian Henríquez’s statement in the circumstances of this case.

IV. Analysis

[8] In this case, the RPD ultimately took issue with both the identity of the agent of harm, allegedly a senator named Alfredo Cornejo, and the extent of the PA’s role within the union. The RAD conducted its own analysis and determined that the RPD’s decision was correct. The RAD then examined the new evidence that it had admitted at the beginning of its reasons, namely, the psychological report, and noted that it contained nothing that could undermine the RPD’s credibility findings, which it had confirmed. At no point did the RAD examine the psychological report and its conclusions to determine whether they had an impact on the timeliness of the other documents. Therefore, the RAD applied the principles set out in subsection 110(4) of the IRPA to each piece of evidence in isolation and not in the context each of them was filed in.

[9] The RAD agreed that Sebástian Henríquez’s statement commented on relevant events and circumstances and was therefore probative, but, since the PA’s union activities and his fear predated the RPD’s decision, this was not new evidence within the meaning of subsection 110(4) of the IRPA. Expecting the RAD to assess the reasons why the evidence was not available within the context of all of the evidence does not change the burden of proof. It simply reminds the RAD of its duty to assess the new evidence within its context, “in the circumstances”, as provided by the Act.

[10] The only role of the psychological report in this case was to provide context for the refugee protection claimants’ state of mind, which impacted all of their behaviour. However, the RAD examined each new piece of evidence one by one, separately and without context. Once the RAD accepted the psychological report, it became unreasonable not to ask whether it also had an impact on the timeliness of the other documents. By dissociating the context from its assessment of the new evidence, the RAD adopted a mechanical checklist approach, which prevented it from applying the legislative requirement of determining whether the applicants “could not reasonably have been expected in the circumstances to have presented” the evidence earlier. Indeed, the applicants’ mental state, described in the psychological report, is a crucial circumstance that was not taken into account.

[11] I am aware that subsection 110(4) is meant to create restrictive and exceptional circumstances for admitting new evidence. However, expecting the RAD to assess the circumstances of each case by weighing the factors established in Singh v Canada (Citizenship and Immigration), 2016 FCA 96, [2016] 4 FCR 230 and Raza v Canada (Citizenship and Immigration), 2007 FCA 385, is consistent with Parliament’s intention.

[12] Since the RAD did not apply a contextual approach, this Court is left to speculate on whether the RAD’s independent assessment of the relevant credibility factors would have been the same had it properly assessed whether to admit Sebástian Henríquez’s statement. This breaks the chain of reasoning, rendering the decision as a whole unreasonable.

[13] The RAD’s decision was unreasonable for the above reasons; it is therefore unnecessary to consider the applicants’ other arguments. The application for judicial review is therefore allowed.

[14] There are no certified questions arising in this matter.

JUDGMENT in IMM-9625-23

CONCLUSION:

1. The application for judicial review is allowed. The matter is referred back to the RAD to be redetermined by a different member.

2. There are no certified questions arising in this matter.

Certified true translation

Margarita Gorbounova

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: