[1] This is an application for judicial review of the decision of a Senior Immigration Officer dated November 30, 2024 [Decision] rejecting the Applicant’s application for a Pre-Removal Risk Assessment [PRRA]. The Officer found the Applicant would not be at risk under either ss. 96 or 97 of the Immigration and Refugee Protection Act, SC 2001, c 27. The issue is whether the Decision is reasonable per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. That is, whether the Decision is intelligible, transparent, and justified by the constraining law and the record.
[2] The Applicant is a citizen of Guatemala. He was found credible by the Refugee Protection Division [RPD] who heard his testimony, a finding which was not disputed before the Refugee Appeal Division [RAD]. Both the RPD and RAD dismissed his claim which was made on the basis of his fear of persecution by certain family members. While the RPD found he had two Internal Flight Alternatives [IFAs], the RAD disagreed with the RPD and found only one IFA was correct.
[3] The Applicant filed three pieces of new evidence on his PRRA application, including a social media post demonstrating the targeted killing of a man, and photographic and video evidence of what he refers to as a targeted attack of a severed and bloody pig’s head nailed on the front of a close relative’s home with a note from the M-18 warning him not to return to Guatemala or he will be killed.
[4] In his PRRA application, the Applicant stated the photograph and video referred to the close relative’s home. To recall, the Applicant was found credible by the RPD and no one on this judicial review disputes his credibility. The Officer dealt with this new evidence:
The applicant stated that on [date], the applicant’s agents of harm left a severed pig’s head at the applicant’s [close relative]’s home with a note. The applicant submitted a photo and video in support this event. I note that I am unable to view the video submission as only written submission can be assessed. In reviewing the picture, I find that there is on [sic – presumably meant “no”, ed.] objective way to establish that the individual in the photo is the applicant’s [close relative] and that the house belongs to [them]. I note that the applicant provided no reference, such as the identity documents, to establish that the individual pictured is his [close relative]. Furthermore, I note that the letter attached to the pig’s head refers to “Velasquez Garcia”, which is the applicant’s surname, and a surname that can be shared by many people, rather than any specific individual. For all the reasons above, I find that the photo is insufficient to establish that the applicant’s agents of harm is motivated to harm him specifically and assign little weight to it.
[5] Counsel agree M-18 is a new and different agent of persecution than that raised before the RPD and RAD. It is also not in dispute that M-18 is a criminal organization operating in Guatemala, with a significant presence in the IFA proposed by the RAD.
[6] With the greatest respect, I am not persuaded this new agent of persecution was reasonably assessed by the PRRA Officer.
[7] As to the video, I note the officer states only that “I note that I am unable to view the video submission as only written submission can be assessed.”
As a result, the Officer gave the video no weight. While I make no determination in this respect, it seems to me PRRA officers should be able to review electronic videos when dealing with matters of importance. As I indicated at the hearing, electronic videos are in widespread use and are easily shared. While fakes are a scourge, the evidence of the Applicant (found credible below) is that the video is of the same pig’s head, home, and close relative that were accepted by the Officer, but given little weight, in the photographs. This distinction is of concern.
[8] Turning to the photographs of the pig’s head, the home of the close relative, and the close relative themself, these photographs are very clear and very graphic. The Court was provided with a translation of the death threat certified by the translator’s affidavit. M-18 is likewise clearly written under the warning that the Applicant will be killed upon return to his home country.
[9] However, the Officer essentially dismissed this photographic evidence saying: “In reviewing the picture, I find that there is on [
sic – presumably meant “no”] objective way to establish that the individual in the photo is the applicant’s [close relative] and that the house belongs to [them]. I note that the applicant provided no reference, such as the identity documents, to establish that the individual pictured is his [close relative].”
[10] In this respect, it seems to me the Decision is unreasonable because it is inconsistent with constraining evidence on the record, namely the written statement by the Applicant that it was a pig’s head on the home of this close relative.
[11] While all parties agree the name of the Applicant which is written on the death threat is a common name, it is also undisputed it is the name of the Applicant which cannot be lost sight of. Moreover, the video and photos are of the home belonging to his close relative according to his own evidence (found credible). I am not satisfied this finding supports the decision to give the photos little weight in the foregoing circumstances of this case, particularly when they have been accepted into the record and considering the well-known distinction (often forgotten but properly relied on by Respondent’s counsel) between the credibility of an Applicant and the sufficiency of their evidence.
[12] Finally, the Decision concludes in this respect: “For all the reasons above, I find that the photo is insufficient to establish that the applicant’s agents of harm is motivated to harm him specifically and assign little weight to it. Even if I were to accept that the agents harm is motivated to harm the applicant, I find that the applicant has not demonstrated that the agents of harm has the means to locate and harm the applicant in Guatemala City, the proposed IFA location.”
As indicated above, more is required on the central issue of whether the photographs establish motive. While it may be reasonable to conclude in this way with respect to the means of the agent of persecution considered by the RPD, I am unable to accept the same may be said, without more, of the means of the newly identified agent of persecution M-18. Notably, the same document from the NDP relied upon by the RPD and RAD establishes M-18 is active in, and indeed in fact M-18 actually controls parts of the proposed IFA. Thus, it appears to me M-18 has the necessary “means”
without an intelligible explanation.
[13] While a number of other issues were raised, judicial review will be granted on the exceptional circumstances related to the constraining record in this case per Vavilov at paragraph 125.
II. Certified Question
[14] Neither party proposed a certified question, and I agree none arises.
III. Costs
[15] Neither party requests their costs, and none will be ordered.
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