Docket: IMM-22556-24
Citation: 2025 FC 1896
Toronto, Ontario, November 28, 2025
PRESENT: Madam Justice Go
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BETWEEN: |
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Stella Calderon Rodriguez
Miguel Angel Roncancio Calderon
Juan Esteban Roncancio Calderon
Nicolas Roncancio Calderon |
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Applicants |
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and |
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Stella Calderon Rodriguez [Principal Applicant or “PA”
], her husband, Miguel Angel Roncancio Melo [Associate Applicant or “AA”
], and their two children [together “Applicants”
] are citizens of Colombia.
[2] The Applicants came to Canada in February 2023 and claimed refugee protection. They allege fear of harm from a criminal organization in Colombia who extorted and threatened them in their hometown where they operated a store.
[3] The Refugee Protection Division [RPD] rejected the Applicants’ claim. In a decision dated November 7, 2024 [Decision], the Refugee Appeal Division [RAD] dismissed the Applicants’ appeal and confirmed the RPD’s finding that the Applicants have not credibly established their allegations and therefore they were not persons in need of protection pursuant to sections 96 or 97 of the Immigration and Refugee Protection Act, SC 2001, c. 27.
[4] The Applicants seek judicial review of the Decision on the ground that the RAD made unreasonable credibility findings without giving the Applicants an opportunity to respond and that it erred in its assessment of the evidence. For the reasons set out below, I dismiss the application.
II. Issues and Standard of Review
[5] The Applicant raises the following arguments to challenge the Decision:
[6] With respect to the standard of review, the Applicants rely heavily on now-dated Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII) [2008] I S.C.R.190, to submit that the standard of correctness applies to questions of law while the standard of reasonableness applies to questions of fact or mixed fact and law. I agree with the Respondent that the presumptive standard of review of the merits is reasonableness and that the Court should look to Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] in determining whether the Decision bears the requisite hallmarks of justification, transparency and intelligibility: Vavilov at para 99. The Applicants bear the onus of demonstrating that the decision was unreasonable: Vavilov at para 100.
[7] Issues of procedural fairness are reviewable on a correctness standard: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 54-56; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35.
A. The RAD did not err by making negative credibility findings based on omissions from the BOC Form
[8] According to the Applicants’ BOC, the PA and AA acquired a store in their hometown in 2009. They began receiving calls of extortion in 2019. In the BOC, the Applicants referred to the agents of persecution as “they.”
With their disclosure 10 days before the RPD hearing, the Applicants included a note which they characterized as a “threat flyer”
from the criminal group Tren de Aragua. During the RPD hearing, they testified that the criminal group behind the extortion is Tren de Aragua.
[9] The Applicants stated in their BOC that in addition to these calls, they found garbage at the entrance of their store. The Applicants sought assistance from the local police who refused to help them file a complaint, citing the lack of evidence. They continued to receive calls and were threatened to not go to the police.
[10] In response to the threats, the Applicants stated in their BOC and testified that they moved addresses and changed phone lines and emails but continued to receive threats and learned that the caller has information about their family and relatives in Colombia and Spain.
[11] In finding that the Applicants had not credibly established their claim, the RAD noted in part the omission of the agents of persecution’s identity from the BOC undermines the credibility of the Applicants’ allegations. The RAD also found the omission of the Applicants’ relocation to a different city and the threatening call to a former employee from the BOC raises credibility concerns.
[12] The Applicants submit that the RAD unreasonably made negative credibility findings based on the BOC’s omissions. They argue that the BOC is clear and consistent with the testimony and evidence. The Applicants also argue that the RAD ignored settled jurisprudence which cautions against making credibility findings when the claimant has a different perspective on the material documents they need to submit.
[13] I agree that not all omissions in the BOC should automatically undermine a claimant’s credibility. However, the case law confirms that the failure to include important facts and details can affect the claimant’s credibility: Occilus v Canada (Citizenship and Immigration), 2020 FC 374 at para 20.
[14] In this case, the RAD noted that when the omission from the BOC or contradiction with oral testimony is material and goes to the core of the claim, it is not sufficient for a claimant to argue that they simply provided further details during testimony to support their narrative in the BOC. The RAD cites Ogaulu v Canada (Citizenship and Immigration), 2019 FC 547 [Ogaulu] at paras 17-20 where the Court noted that the failure to include the important facts and details of a claim can affect the credibility of all or part of a claimant’s testimony.
[15] The RAD also considered the Applicants’ explanation for not mentioning Tren de Aragua as the agents of persecution and found the explanation to be unreasonable. The RAD noted the Applicants has counsel who assisted them in completing the BOC, that the agents of persecution’s identity as a well-known violent cartel is relevant and material information, and that the Applicants could have reasonably been expected to include the agents’ identity in the BOC. The RAD also dealt with the Applicants’ explanations for other omissions and found them to be unreasonable.
[16] Other than expressing their disagreement with the Decision, the Applicants raise no reviewable errors with the RAD’s analysis, nor do I find any.
[17] The Applicants also argue that the RAD erred when it found that their supporting evidence is not part of the BOC. Pointing to the instructions in the BOC form, the Applicants submit that supporting documents ought to be considered part of the BOC, and they should not be impugned for relying on the BOC’s definitions and instructions.
[18] I reject this argument. I note the Applicants made similar argument in their appeal of the RPD decision. The RAD considered their argument, noting that the Applicants were using the word “evidence”
to mean either their testimony or the supporting documents, or both. However, the RAD rejected the argument, finding that neither the Applicants’ testimony nor their supporting documents were part of the BOC. Rather, the BOC, the testimony, and the supporting documents together made up the Applicants’ evidence.
[19] Before the Court, the Applicants repeat the same argument that they made before the RAD without referencing any case law in support. I find no errors arising from the RAD’s reasons for rejecting the Applicants’ argument.
B. The RAD did not breach the Applicants’ right to procedural fairness
[20] The Applicants submit that the RAD breached their right to procedural fairness by making new and further credibility findings which the RPD did not make in some instances, and replacing the RPD’s findings with its own in other instances. The Applicants argue that they did not get a meaningful opportunity to address the RAD’s concerns. They point to paragraphs 27 to 29, 31, and 47 to 51 of the Decision to demonstrate that the RAD made new credibility findings. They also cite Kider v Canada (Citizenship and Immigration), 2021 FC 1454, Palliyaralalage v Canada (Citizenship and Immigration), 2019 FC 596, Ojarikre v Canada (Citizenship and Immigration), 2015 FC 896, Husian v Canada (Citizenship and Immigration), 2015 FC 684, and Ugbekile v Canada (Citizenship and Immigration), 2016 FC 1397.
[21] I find the cases the Applicants cite are all distinguishable on the facts. In these cases, there were procedural fairness issues because the RAD made new credibility findings that were not made by the RPD, made credibility findings unrelated to the RPD’s findings, or raised new credibility concern regarding issues or new evidence on which the RPD made no credibility findings.
[22] Here, as the Respondent points out – and I agree – the RAD’s findings in the impugned paragraphs were all made in direct response to the arguments the Applicants raised on appeal concerning the RPD’s credibility findings. As such, the RAD made its findings consistent with its role to review the RPD’s decision and the evidentiary record in light of the issues raised by the Applicants.
[23] Without delving into the details, I note that the RAD’s findings with respect to the contradictions in the extortion amount, the contradictions about internal relocation, and the omission of relocation to a different city were all issues the Applicants raised in their appeal submissions. The RAD addressed the Applicants’ arguments, noting both the gaps in the RPD’s reasons and the evidence the Applicants relied on to challenge the RPD’s findings. After conducting its independent analysis, the RAD confirmed the RPD’s credibility findings.
[24] As this Court has confirmed in Waseem v Canada (Citizenship and Immigration), 2021 FC 1422 at para 17 and Salman v Canada (Citizenship and Immigration), 2023 FC 340 at para 34, while the RAD cannot raise new issues without notice to the parties, it is entitled to make independent credibility finding where credibility was an issue before the RPD, the RPD’s findings were on appeal, and the RAD’s findings arise from the evidentiary record in response to the appeal submissions. In this case, the RAD did precisely what the Court says it is entitled to do.
C. The RAD did not err in rejecting the Applicant’s argument that the RPD made credibility findings in breach of procedural fairness
[25] The Applicants make similar arguments as above, stating that the RAD made additional credibility findings based on the supporting documents, including support letters, without giving them an opportunity to respond. The Applicants point out the RAD acknowledged that the RPD did not question the Applicants about the supposed contradictions with their supporting evidence. However, rather than correcting this error, the RAD simply found that the authority cited did not follow the same fact pattern. The RAD then went on to make additional credibility findings based on these documents, once again without questioning the Applicants.
[26] The Applicants cite the Court’s comment in Balyokwabwe v. Canada (Citizenship and Immigration), 2020 FC 623 [Balyokwabwe] at paras 59-61 that corroborative evidence should be independently assessed. They argue the Court confirmed that evidence should not be discounted for its omissions to corroborate with other aspect of the claim but rather it should be assessed for its content: Sivaraja v Canada (Citizenship and Immigration), 2015 FC 732 and Belek v Canada (Citizenship and Immigration), 2016 FC 205.
[27] I am not persuaded by the Applicants’ arguments.
[28] As the RAD noted, and I agree, Balyokwabwe dealt with the panel’s the treatment of the evidentiary record in finding a claim manifestly unfounded, which is not the case here.
[29] More importantly, the RAD responded directly to the arguments that the Applicants raised by stating that this Court has found it reasonable to have credibility concerns with evidence when it is inconsistent with the BOC when the testimony itself is not credible, citing Ogaulu at para 26 and Mamlouk v Canada (Citizenship and Immigration), 2023 FC 1097 at para 43. The RAD then proceeded to analyze each letter and found that the letters were insufficient to outweigh its credibility concerns arising from the Applicants’ direct evidence.
[30] The RAD’s analysis was a direct response to the Applicants’ argument that the support letters should not have been rejected. While the Applicants may not agree with the RAD’s findings, their disagreement does not amount to any reviewable error.
[31] At the hearing, the Applicants made new arguments suggesting, among other things, that the RAD should not dismiss a document simply because it was unsworn, and that if the RPD has concern about an unsworn statement, they should call the person to testify. The Applicants’ new arguments either misconstrue the actual findings made by the RAD or otherwise have no grounding. Moreover, the Applicants are impermissibly seeking to have the Court reweigh the evidence.
D. The RAD did not unreasonably assess the documentary evidence on the record
[32] The Applicants submit that the RAD erroneously excluded objective documentary evidence about Tren de Aragua and subjected the Applicants to a higher evidentiary standard than what is required in a refugee claim. They argue that the RAD ignored the cited case law from their submissions by not considering the country conditions evidence.
[33] I disagree.
[34] As the RAD found the Applicants had not established that they are at risk from Tren de Aragua, the objective country condition reports about the organization were not relevant. I note also that the RAD did address the Applicants’ submissions regarding the documentary evidence, including the argument that the RPD did not refer to the National Documentation Package [NDP] on Colombia and the case law that the Applicants sought to rely on. The RAD distinguished the RAD decision the Applicants cited because, in that case, both the RPD and RAD found the allegations credible, whereas in the case at hand neither found the allegations of extortion and threat credible from the outset.
[35] As I find the RAD did not err in its credibility findings, including its finding that the Applicants had not credibly established the agents of persecution’s identity, I see no error arising from the RAD’s finding that the NDP evidence did not overcome its credibility concerns.
[36] The application for judicial review is dismissed.
[37] There is no question for certification.
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