Docket: IMM-12841-23
Citation: 2024 FC 1893
Ottawa, Ontario, November 25, 2024
PRESENT: The Honourable Mr. Justice Ahmed
BETWEEN: |
ROBERTO CARLOS RAMOS GAPI |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Roberto Carlos Ramos Gapi, seeks judicial review of a decision of the Refugee Appeal Division (the “RAD”
) dated September 13, 2023, which affirmed the decision of the Refugee Protection Division (the “RPD”
) that the Applicant is neither a Convention refugee nor a person in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c 27.
[2] The Applicant submits that the RAD’s decision is unreasonable and was rendered in a procedurally unfair manner.
[3] I disagree. I find the decision to be reasonable and in accordance with the duty of procedural fairness. This application for judicial review is dismissed.
II. Facts
[4] The Applicant is a citizen of Mexico. He seeks protection from the Jalisco New Generation Cartel (the “Cartel”
).
[5] In Mexico, the Applicant worked as a warehouse supervisor. On March 15, 2022, he encountered armed men searching for his employer, D (the “First Encounter”
). The next day, the armed men returned, forcing the Applicant to call D (the “Second Encounter”
). D did not answer.
[6] From March 18 to 19, 2022, the Applicant reports that the men called him three times, threatening to kill him and his family.
[7] On March 20, 2022, the Applicant attempted to report the incidents to the police. However, he was intercepted by the men and warned against making a report.
[8] The Applicant and his family then went into hiding. In April 2022, a neighbour informed him that people were searching for him at his abandoned home.
[9] On April 23, 2022, the Applicant travelled to Canada and claimed refugee status. The Applicant states that the Cartel continued to search for him after he fled, with his wife receiving a threatening call on June 1, 2022.
[10] On May 26, 2023, the RPD refused the Applicant’s claim on the basis of credibility. The Applicant appealed the refusal to the RAD.
[11] On September 13, 2023, the RAD affirmed the RPD’s decision. Although the RAD agreed that the RPD subjected some of the Applicant’s evidence to microscopic scrutiny, it determined that the Applicant lacked credibility on core elements of his claim, namely: the First Encounter, the threatening call to his family, the Cartel’s presence at his home, and the Cartel’s objective in pursuing him. This is the decision that is presently under review.
III. Issues and Standard of Review
[12] The Applicant submits that the RAD’s decision is unreasonable and was rendered in a procedurally unfair manner.
[13] The parties submit that the applicable standard of review for the merits of the RAD’s decision is that of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 25, 86-87 (“Vavilov”
)). I agree.
[14] The issue of procedural fairness is to be reviewed on the correctness standard (Mission Institution v Khela, 2014 SCC 24 at para 79; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 37-56 (“Canadian Pacific Railway Company”
); Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35). I find that this conclusion accords with the Supreme Court of Canada’s decision in Vavilov (at paras 16-17).
[15] Reasonableness is a deferential, but robust, standard of review (Vavilov at paras 12-13). The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible, and justified (Vavilov at para 15). 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 para 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision-maker, and the impact of the decision on those affected by its consequences (Vavilov at paras 88-90, 94, 133-135).
[16] For a decision to be unreasonable, the applicant must establish the decision contains flaws that are sufficiently central or significant (Vavilov at para 100). Not all errors or concerns about a decision will warrant intervention. A reviewing court must refrain from reweighing evidence before the decision-maker, and it should not interfere with factual findings absent exceptional circumstances (Vavilov at para 125). Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep”
(Vavilov at para 100).
[17] Correctness, by contrast, is a non-deferential standard of review. The central question for issues of procedural fairness is whether the procedure was fair having regard to all of the circumstances, including the factors enumerated in Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 (at paras 21-28; see also Canadian Pacific Railway Company at para 54).
IV. Analysis
A. The RAD’s Decision is Reasonable
[18] The Applicant submits that the RAD erred in its credibility assessment and rendered a decision that is unreasonable. The Applicant asserts that the RAD undertook a microscopic examination of peripheral issues, impugning his credibility based on immaterial details and inferences that were not truly inconsistent with his claim.
[19] The Respondent submits that the RAD’s decision is reasonable, stating that the RAD’s negative credibility assessments were justified due to the Applicant’s vague, inconsistent, and evasive testimony.
[20] I agree with the Respondent. The RAD reasonably determined that the Applicant lacked credibility on core elements of his claim, namely: the First Encounter, the threatening call to his family, the Cartel’s presence at his home, and the Cartel’s objective in pursuing him.
[21] With respect to the First Encounter, the RAD rightly noted that the Applicant’s credibility was impugned by contradictions between his Basis of Claim (“BOC”
) and his testimony at the RPD hearing. In his BOC, the Applicant described the First Encounter as follows: “There were three men inside the truck, and they asked for [D]…I asked their names, but they did not reply. They left without providing me with any further details.”
At the hearing, the Applicant stated that the men “asked [the Applicant] about [D]”
and “told [the Applicant] they were coming for some merchandise that was in the warehouse.”
I agree with the RAD that this inconsistency “is not merely a clarification or provision of further detail, but directly contradicts the BOC’s account.”
[22] Moreover, I find the RAD’s expectation that the Applicant would remember these aspects of the First Encounter to be reasonable. The Applicant submits that these details are trivial and should not be “use[d]…as the basis for disbelieving [him]”
(Attakora v Canada (Minister of Employment and Immigration), 1989 CarswellNat 736, [1989] FCJ No 444 at para 4 (FCA)). Although the Applicant’s claim may not turn on the specific details of the First Encounter, I agree with the RAD that the First Encounter would be memorable to the Applicant because it was his first interaction with the Cartel. His contradictory testimony about this event therefore undermines his credibility.
[23] With respect to the threatening call to the Applicant’s family, I find no reviewable error in the RAD’s analysis. The RAD correctly noted that the Applicant’s evidence was inconsistent with respect to the number and timing of the calls. Asking about these details does not amount to “a memory test,”
particularly since the Cartel’s threats form a central element of the Applicant’s claim (Sheikh v Canada (Minister of Citizenship and Immigration), 2000 CanLII 15200 at para 28 (FC)).
[24] With respect to the Cartel’s presence at the Applicant’s home, I agree with the RAD that the Applicant’s evidence was evasive and contradictory. In his BOC, the Applicant states that a neighbour told him in April 2022 about people searching for him outside his apartment. At the RPD hearing, the Applicant stated that a neighbour reported several cars without license plates parked outside his home for “[t]hree (3) or four (4) days straight.”
When questioned about this inconsistency, the Applicant stated that “it’s difficult for [him] to remember every moment…because [he] left everything behind, [his] whole life behind.”
This explanation does not adequately address the inconsistency in the Applicant’s evidence.
[25] Citing Selvakumaran v Canada (Citizenship and Immigration), [2002] FCJ No 842, 2002 FCT 623 (“Selvakumaran”
), the Applicant submits that his evidence is not truly inconsistent, as his testimony during the hearing merely provided further detail to the statements in his BOC. However, the additional details in Selvakumaran concerned a discrete event that took place prior to the incident discussed in the applicant’s initial evidence. The additional details and the initial evidence together formed a continuous narrative of migration. In this case, the additional details alter a core aspect of the Applicant’s claim. As aptly noted by the RAD, “[t]here is a significant, and obviously important distinction between indicating that his neighbour had informed him that men had passed by his apartment looking for him once, which was clearly the context established in the BOC, and the later claim that the men had instead come for three or four consecutive days, and essentially staked out the building over that time.”
[26] In addition to the April 2022 incident, the RAD made further negative credibility determinations based on a May 2022 incident where strangers were again reported at the Applicant’s home. During the RPD hearing, the Applicant brought new evidence about the May 2022 incident. When asked why this evidence was omitted from his BOC submitted in June 2022, his narrative signed January 2023, and his Addendum sent in April 2023, the Applicant stated that the narrative predated the incident, corroborative evidence from his neighbour was unavailable, and he only learned about the incident “months later”
after arriving in Canada. However, as rightly noted by the RAD, the Applicant’s materials post-date the incident, the corroborative evidence was declared prior to the Addendum, and the Applicant arrived in Canada in April 2022, before the incident in May 2022. I agree with the Respondent that the Applicant’s statements were inconsistent and at odds with the objective evidence on the record. The RAD did not err in determining that the Applicant lacked credibility on this basis.
[27] Although the Applicant submits that the RAD disregarded his PTSD and other psychological conditions in impugning his credibility, I find that the RAD explicitly considered the Applicant’s submissions on mental health, correctly noting that “the April 6, 2023 psychologist’s letter…does not indicate that [the Applicant’s] memory has been impacted.”
In any event, the Applicant does not state that he failed to remember the incident in May 2022. He provides evasive and contradictory responses that fail to explain why evidence of this incident was not shared prior to the RPD hearing. The RAD did not err in finding that this had a negative bearing on the Applicant’s credibility.
[28] With respect to the Cartel’s objective in pursuing the Applicant, I find that the RAD’s negative credibility determinations are reasonable. Upon arriving in Canada, the Applicant stated to the CBSA that he fled Mexico because “he learned that the company that had employed him in Mexico was involved in drug trafficking with the Cartel.”
However, at the RPD hearing, the Applicant stated that he was at risk because the Cartel “thought that [he] either robbed the merchandise or that [he] knew where”
the stolen merchandise was. The Applicant failed to explain this inconsistency, even when explicitly asked to do so. However, he did acknowledge that there were omissions in his statements to the CBSA, explaining that he was distraught at the time and experiences memory issues.
[29] The Applicant now submits that there is no inconsistency in his representations, as his statements to the CBSA were a recital of the facts and his testimony at the RAD hearing was an inference based on those facts. With respect, I disagree. Being employed in a firm that is entangled in illicit drug trafficking and being suspected of possessing stolen merchandise belonging to a cartel present qualitatively different types of risk. The RAD rightly noted that “[i]t is not enough for the [Applicant] to now claim that there was really no difference or omission.”
The Applicant was obliged to address the inconsistency in his statements, rather than simply asserting that no inconsistency exists.
[30] Furthermore, the RAD was justified in referring to the CBSA’s port of entry notes in their assessment of the Applicant’s credibility. Though the Applicant is correct that this Court has cautioned against impugning an applicant’s credibility based on inconsistences between point of entry notes and subsequent evidence, the inconsistencies at issue in this proceeding address “crucial elements”
of the Applicant’s claim and were thus rightly considered by the RAD (Guven v Canada (Citizenship and Immigration), 2018 FC 38 at para 39, cited in Alhossiny v Canada (Citizenship and Immigration), 2022 FC 520 at para 27 and Ehichoya v Canada (Citizenship and Immigration), 2022 FC 1329 at para 22).
[31] For these reasons, I find that the RAD’s decision is reasonable. The Applicant’s submissions to the contrary are meritless.
B. There is No Breach of Procedural Fairness
[32] The Applicant submits that the RPD breached the duty of procedural fairness by repeatedly questioning him about the discrepancy between the port of entry notes and his testimony at the hearing. The Applicant asserts that he only “admitted the omission after he was asked the same questions four times by the RPD”
and that he “should not be asked the same question repeatedly until the [RPD] gets the respond [sic] they wish.”
[33] The Respondent submits that there was no breach of procedural fairness, since the RPD only repeated the question “because the Applicant asked the RPD to repeat the question once, and then failed to clearly respond.”
[34] I agree with the Respondent.
[35] The repetitive questioning of the RPD must be viewed in the context of the Applicant’s persistently evasive responses. The RPD asked about the discrepancy between the port of entry notes and the Applicant’s testimony five times. The first time, the Applicant explained how he came to believe that his boss, D, was involved with the Cartel. The second time, the Applicant stated that he had not stolen any merchandise but that the Cartel believed that he had. The third time, the Applicant asked for the question to be repeated. The fourth time, the Applicant stated that he has to protect his and his family’s lives, and that the Cartel still believes he is in possession of the stolen merchandise. The fifth and final time the RPD posed this question, the Applicant acknowledged that he omitted details about the stolen merchandise in his responses to the CBSA.
[36] The RPD did not err in repeatedly posing this question. In fact, the RPD was obliged to adequately investigate this issue, particularly in light of its significance to the Applicant’s claim. Furthermore, the RPD did not receive “the [response] they wish.”
In fact, the Applicant did not answer the question: no reason was provided for the discrepancy between the port of entry notes and his testimony.
V. Conclusion
[37] For these reasons, I find that the RAD’s decision is reasonable and was rendered in a procedurally fair manner. The RAD’s negative credibility determinations are justified in light of the evidentiary record and are based on an internally coherent and rational chain of analysis (Vavilov at para 85). No questions for certification were raised, and I agree that none rise.
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