Docket: IMM-3668-24
Citation: 2024 FC 1962
Toronto, Ontario, December 4, 2024
PRESENT: Madam Justice Go
BETWEEN: |
Marlene ALDANA BURGOS Carlos Ali PONCE PONCE |
Applicants |
and |
MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicants, Marlene Aldana Burgos [Principal Applicant or PA] and her boyfriend Carlos Ali Ponce Ponce [Associate Applicant or AA] are citizens of Mexico. The PA alleges being sought by members of the Lagunes family, whom she claims have ties to the Los Zetas cartel. The PA alleges the Lagunes family seek revenge upon the PA’s brother – who has been missing since 2019 – for allegedly murdering the Lagunes family’s father. The PA came to Canada in 2018 to join the AA, who was already living in Canada, and they filed their refugee claims.
[2] On September 21, 2022, the Refugee Protection Division [RPD] refused the Applicants’ claims, finding that the Applicants had an internal flight alternative [IFA].
[3] The Applicants had been self-represented before the RPD. The Applicants appealed the RPD decision to the Refugee Appeal Division [RAD] with the assistance of counsel. On March 23, 2023, the RAD dismissed the appeal.
[4] The Applicants retained new counsel and applied to re-open their appeal before the RAD on July 9, 2023 on the basis that their previous counsel had failed to file certain evidence. The application was allowed. The Applicants introduced new evidence that had not been presented during the first RAD proceeding. The Applicants also raised arguments regarding the PA’s nexus to the Convention as a Mexican woman, as well as arguments regarding gender-based violence in the proposed IFA. The Applicants further submitted that the agents of harm have ties to Los Zetas cartel, and have motivation and means to find the Applicants in the IFA given their ties to the cartel and the corruption in Mexico.
[5] On February 5, 2024, the RAD dismissed the appeal and upheld the RPD decision, finding that the Applicants are neither Convention refugees nor persons in need of protection [Decision].
[6] The Applicants now seek judicial review of the Decision. For the reasons set out below, I dismiss the application.
II. Issues and Standard of Review
[7] The Applicants raise the following issues:
- Did the RAD err by not admitting the entirety of the new evidence?
- Did the RAD breach the Applicants’ right to procedural fairness by not convening an oral hearing?
- Did the RAD err in its IFA analysis?
- Did the RAD err in its assessment of the PA’s claim under section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]?
[8] The Applicants submit that the standard of correctness applies in reviewing the RAD’s refusal to admit new evidence, citing Idugboe v Canada (Citizenship and Immigration), 2020 FC 334 [Idugboe] at para 47, and that the standard of reasonableness applies in reviewing the RAD’s assessment of evidence and of risk under the IRPA.
[9] I disagree with the Applicants that the standard of correctness applies in reviewing the RAD’s refusal to admit new evidence. As the Court noted in Idugboe at para 47, the Federal Court of Appeal [FCA] has concluded clearly that the reasonableness standard is applicable to the RAD’s interpretation and application of subsection 110(4): Singh v Canada (Citizenship and Immigration), 2016 FCA 96 [Singh] at paras 23, 29.
[10] I find the reasonableness standard as set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] applies in this case.
Issue 1: Did the RAD err by not admitting the entirety of the new evidence?
[11] The RAD admitted some, but not all, of the new evidence the Applicants sought to admit.
[12] The Applicants argue that the RAD erred in excluding the new evidence because the evidence filed is relevant and has probative value. The Applicants further argue that the new evidence meets the criteria of credibility, relevance, and newness in Raza v Canada (Citizenship and Immigration), 2007 FCA 385 [Raza] and that the new evidence is at the core of the determinative issue, namely, the motivation to harm the Applicants in the IFA.
[13] Specifically, the Applicants argue the RAD committed the following errors:
The RAD erred by excluding considerable parts of the PA’s statutory declaration that added details and specific information about the timing of key events, the identity of the agents of persecution, and their ties to the Los Zetas cartel. The PA provided an explanation for why she was including more information about her problems, and why she was previously unable to present their full story, yet the RAD failed to justify why the PA’s explanation was unsatisfactory and why the evidence was not admitted. The RAD also erred by stating that the PA had “met with her lawyer various times”
when the PA did not have a representative at the time.
The RAD erred by excluding social media posts and articles that they had previously tried to submit as evidence during the first RAD proceeding but which their former counsel had failed to submit. This evidence reveals accusations against PA’s brother and indicates that the Lagunes family has ties with the Los Zetas cartel. The RAD erred by finding that the Applicants did not provide a rationale for why these documents were not reasonably available at the time of the rejection, and that the Applicants had not made any accusations about negligence regarding their former counsel, when in fact they did put this concern to their former counsel.
The RAD erred by rejecting a threat to the PA’s father and raising credibility concerns with the evidence without admitting it, without holding an oral hearing, and without providing the Applicants with an opportunity to respond. The threat in question was a text message sent in September 2021 to the PA’s father, which the Applicants argue addresses the motivation of the agents of persecution to track the Applicants in the IFA. The threat is part of a long list of threats experienced by the PA’s family that demonstrates motivation on the part of the agents of persecution to harm the PA and her family across Mexico.
[14] I do not find the Applicants’ arguments persuasive.
[15] Contrary to the Applicants’ argument that the RAD failed to explain why it excluded new evidence, the RAD provided individualized and detailed reasons for each document it rejected. The RAD explained that all new evidence had to meet the statutory requirements under subsection 110(4) of the IRPA. The RAD also appropriately referred to the factors set out in Singh at para 38 and Raza at para 13, namely that the evidence must be deemed credible, relevant, and new for it to be admitted.
[16] I agree with the Respondent that nothing turns on the RAD’s factual error with regard to the PA’s meeting with her lawyer during the time the Applicants were unrepresented. Read as a whole, the Decision demonstrates that the RAD took into consideration that the Applicants were self-represented. However, the RAD was of the view that being self-represented could not satisfactorily establish that this new evidence was not reasonably available earlier and cited case law in support of its conclusion: Olifant v Canada (Citizenship and Immigration), 2022 FC 947 at para 16; Khosa v Canada (Citizenship and Immigration), 2023 FC 555 at para 60. While the Applicants may disagree with the RAD’s findings, they have not demonstrated any fatal flaw in its analysis.
[17] I also agree with the Respondent that while the RAD agreed to re-open the application in light of the allegation of ineffective counsel, the procedural fairness breach arising from that issue was cured once the RAD re-opened the Applicants’ claim. The RAD hearing was de novo and the RAD exercised its discretion to determine what, if any, new evidence should be admitted.
[18] The Applicants took issue with the RAD’s finding that the Applicants instructed their former counsel not to admit the social media posts, when the facts were more nuanced. I find this argument amounts to a mere disagreement with the RAD’s assessment. As their former counsel stated in the statutory declaration of the Applicants’ former counsel, she did not inadvertently fail to file the social media posts. Rather, she believed these posts painted the PA’s brother in a negative light, and ultimately, the Applicants instructed counsel not to include it. The RAD’s finding that the Applicants “submitted the documents to their former lawyer, discussed the matter, and then instructed their lawyer not to include the documents”
was consistent with the evidence before the RAD.
[19] Finally, I reject the Applicants’ submission that the RAD erred by excluding the WhatsApp message concerning the PA’s father based on credibility, without providing them with an opportunity to reply.
[20] The RAD was entitled to assess the credibility of the evidence that the Applicants sought to admit, as one of the criteria set out under Singh and Raza for admitting new evidence. As to whether the RAD should hold a hearing under subsection 110(6) of the IRPA, the FCA in Singh at para 44 explained, “it is not the credibility of the evidence itself that must be weighed, but whether otherwise credible evidence ‘raises a serious issue’ with respect to the general credibility of the person.”
[21] In this case, the RAD pointed to the lack of submissions pertaining to the source and circumstances of the WhatsApp message, the lack of context to the text message, the lack of identity of the sender, and that the message itself can be interpreted in various ways, for refusing to admit the evidence. RAD’s analysis was reasonable and its findings concerned the credibility of the evidence, and not the general credibility of the Applicants. As such, the RAD did not err by deciding not to hold an oral hearing.
Issue 2: Did the RAD breach the Applicants’ right to procedural fairness by not convening an oral hearing?
[22] The Applicants submit the RAD erred by not admitting the entirety of the new evidence prior to assessing its credibility and by depriving them of their right to be heard and to address the RAD’s concerns during an oral hearing. The Applicants argue the new evidence before the RAD meets the threshold for convening an oral hearing pursuant to subsection 110(6) of the IRPA because the evidence raises a serious issue with respect to the Applicants’ credibility.
[23] The Applicants refer specifically to the RAD’s concerns regarding the text message received by the PA’s mother in November 2022. The Applicants argue the RAD had to hold a hearing to express its concerns and ask the Applicants why they believed this text message was a threat against them and the PA’s family. By failing to do so, the RAD deprived the Applicants the opportunity to address the RAD’s concerns and breached their rights to procedural fairness.
[24] The Applicants also cite Tchangoue v Canada (Citizenship and Immigration), 2016 FC 334 at para 18 to argue that the RAD erred by failing to conduct a proper analysis of whether the criteria for holding an oral hearing were met.
[25] I reject this argument.
[26] The RAD accepted the text message received by the PA’s mother as new evidence. However, the RAD also noted that the PA did not provide any evidence from herself nor her mother as to the context of this message. In particular, the RAD noted there was no evidence as to who sent the text message, whether there were any other messages or incidents, and if there were any other circumstances that may explain why the message was sent or what specifically the warning was about. The RAD further questioned to whom the “them”
in the text message referred and noted that the PA’s name was not mentioned in the text message. Finally, the RAD noted that the PA testified that nothing has happened to her mother.
[27] I reject the Applicants’ arguments that these were credibility findings that warrant an oral hearing as these findings did not put the credibility of the Applicants at issue: Singh at para 44. As such, the RAD’s decision not to hold an oral hearing was consistent with the requirements in the IRPA for holding an oral hearing.
Issue 3: Did the RAD err in its IFA analysis?
[28] The two‑pronged test for finding a viable IFA is well‑established. The decision‑maker must be satisfied, on a balance of probabilities, that (1) there is no serious possibility of the claimant being persecuted in the proposed IFA, and (2) the conditions in the proposed IFA are such that it would not be unreasonable, in all the circumstances, for the Applicant to seek refuge in the IFA: Rasaratnam v Canada (Employment and Immigration), [1992] 1 FC 706, 140 NR 138 (FCA) at 711; Thirunavukkarasu v Canada (Employment and Immigration), [1994] 1 FC 589, 109 DLR (4th) 682 (FCA) [Thirunavukkarasu] at 597.
[29] The Applicants challenge the RAD’s IFA analysis under both prongs.
[30] First, the Applicants submit the RAD erred in the first prong of the IFA analysis as the agents of harm are motivated to find the Applicants and have the means to do so.
[31] With respect to the issue of motivation, the Applicants submit the RAD committed the following errors:
The RAD erred by excluding new evidence relating to the identity of the agents of harm and their ties to the Los Zetas cartel, and with regard to the evidence it did admit, the RAD’s analysis was unreasonable.
The evidence demonstrated the agents of harm’s consistent pursuit of the PA’s brother and her family, as shown by a 2020 threat made by a member of the Lagunes family against the PA’s brother, and recent threats to her mother and father. The documentary evidence reveals that criminal groups are motivated to track certain individuals because they steal or lose money, or because of personal rivalries or vengeance, and the RPD determined that the agent of persecution was motivated to harm the Applicants.
Following the rationale in Rivera Benavides v Canada (Citizenship and Immigration), 2020 FC 810 at para 75, there was no evidence before the RPD that the cartel had lost interest in the Applicants. On the contrary, this interest began in 2012 and evidence reveals threats are still being made against the PA’s family. The agent of persecution has a grievance with the PA’s brother, and the documentary evidence reveals that organized crime groups torture family members to find information about a target.
The Applicants have established that the Lagunes family is motivated to find them, as the Lagunes family has been consistent in their search for them. As such, the Applicants have established on a balance of probabilities that they would not be safe in the proposed IFA.
[32] With respect, I find the Applicants are essentially rearguing their case before me, rather than raising any reviewable errors in the RAD’s analysis.
[33] As the Respondent points out, the onus rests on the claimant to demonstrate with clear, convincing, and non-speculative evidence that on a balance of probabilities, they will suffer persecution in the IFA: Thirunavukkarasu at para 5.
[34] In this case, the RAD found the Applicants have not provided sufficient evidence that the Lagunes family has any connection to any cartel, and that the Lagunes family has a continuing interest in the PA. The RAD provided reasons for its findings, noting, among other things, that the Applicants’ allegations are speculative, and the Applicants’ submissions that the Lagunes family have a “luxury life”
or “luxury cars”
were not sufficient to make the connection between the Lagunes family and the Los Zetas cartel or any other cartel.
[35] The Applicants disagree with the RAD’s conclusion on the admissibility of their newly submitted evidence. However, as noted above, the RAD reasonably explained why it did not accept the entirety of the newly submitted evidence. The RAD further explained that the information that Los Zetas was the agent of persecution would reasonably have been available to the Applicants prior to the RPD hearing and found there was no reasonable explanation for why this information was not mentioned earlier.
[36] I therefore find the RAD did not err in its analysis with respect to the motivation of the agents of harm.
[37] With respect to the means of the agents of harm, the Applicants argue the RAD erred in its analysis, stating:
The RPD erred by failing to consider that the agents of harm would not need to deploy significant resources to track the Applicants in the IFA. A high level of motivation is not required, given the low cost to track and harm a target in Mexico.
The RAD erred by finding there was a viable IFA for refugee claimants without referring to contradictory evidence, contrary to the case law: Engenlbers v Canada (Citizenship and Immigration), 2022 FC 1545 at para 16.
The RAD ignored evidence about the epidemic of corruption in Mexico and how this translates into being able to easily find an individual. Further, expansive quantities of sensitive personal data in Mexico are vulnerable to breach and can be inexpensively purchased on the black market, including voter registration information, addresses, and occupational information.
[38] I note that the Applicants’ submission conflates “motivation”
with “means.”
[39] More importantly, contrary to the Applicants’ arguments, the RAD acknowledged that the objective evidence indicated that large, powerful cartels probably have the capacity to locate persons they have an interest in finding in Mexico, and thus no city would provide a safe haven if an organized crime group were so motivated in harming an individual.
[40] However, the RAD reiterated its findings that the Applicants did not establish with credible or trustworthy evidence that the agents of harm are connected to, or associated with, a cartel. Even if the Lagunes family were affiliated with a cartel, there was no evidence that they had sufficient influence such that they could engage the cartel’s resources to track the Applicants throughout Mexico, especially considering the PA has been out of the country since 2018 and the AA even before that time.
[41] In light of the evidence before it, these findings of the RAD were reasonable.
Issue 4: Did the RAD err in its assessment of the PA’s section 96 claim?
[42] The Applicants submit that the RAD erred in its determination that the PA had not established that she faces a serious possibility of persecution as a Mexican woman.
[43] The RAD noted that the PA had not previously faced gender-based violence prior to coming to Canada. However, the Applicants argue the RAD erred in law because refugee claims are to be assessed on a forward-looking basis; the fact that the PA has not presented evidence pointing to gender-based violence when she was in Mexico is irrelevant when overwhelming evidence points to such violence happening upon return, on a balance of probabilities.
[44] While the RAD found that Mexican women face a “significant degree of gender-based violence in Mexico”
but that this does not necessarily rise to the level of persecution, the Applicants submit the RAD failed to explain the basis for this finding when considering the objective evidence on femicides in Mexico. Moreover, the objective evidence reveals that gender-based violence is becoming progressively more tied to criminal and state forms of violence and has been negatively impacted by the country’s mounting militarization of civilian forces. The evidence also highlights the ties between gender-based violence and public confrontations between armed forces and non-state armed actors, or amongst criminal organizations.
[45] As such, the Applicants argue the RAD erred by failing to reconcile the documentary evidence with the PA’s forward-looking risk.
[46] I reject the Applicants’ arguments for the following reasons.
[47] As a starting point, the Applicants present contradictory positions on their section 96 claim. On the one hand, the Applicants appear to argue that the PA has a nexus to a Convention ground as a Mexican woman, while on the other, the Applicants deny that they are arguing that all women in Mexico face gender-based violence that amounts to persecution, as the Respondent submits. By framing the section 96 issue based on the PA as a member of a particular social group, namely as a Mexican woman, I find the Applicants are essentially arguing that all women of Mexico are facing a risk of persecution.
[48] Indeed, much of the Applicants’ argument challenging the RAD’s analysis focuses on the gender-based violence in Mexico as it affects all women, when asserting that the RAD ignored country conditions evidence in this regard. However, the RAD dealt with this issue and provided reasons for why it did not find the level of gender-based violence in Mexico amounts to persecution. The RAD acknowledged that the objective evidence indicates that gender-based violence is a serious issue. However, the RAD noted the varying rates of femicides across states, the misleading number as represented by femicides, and the steps the Mexican government has taken to address gender-based violence, although more work is still needed. While the RAD may not have referred to every country conditions reports the Applicants cite, it is presumed to have done so: Singh v Canada (Citizenship and Immigration), 2024 FC 1483 at para 46. Moreover, the caveat that the RAD added in its reasons demonstrate its awareness of the conflicting objective evidence on gender-based violence in Mexico.
[49] If, however, the Applicants’ position is that the PA herself faces persecution not only because she is a woman, but because of the ties linking organized crime to gender-based violence, I find that argument was also addressed and was ultimately dismissed by the RAD.
[50] The RAD noted that the proposed IFA has the lowest homicide rate in Mexico, and that the only evidence of gender-based violence directed to the PA relates to a number of threats owing to her brother’s altercation with a local family. The RAD noted its finding that the agents of persecution do not have the motivation to pursue the PA in the proposed IFA, and that the PA gave no evidence of having faced gender-based violence prior to her travelling to Canada in 2017.
[51] In short, the fact that the PA gave no evidence of having faced gender-based violence prior to her travelling to Canada was but one of many factors leading to the RAD’s rejection of the PA’s section 96 claim. Further, the RAD reasonably considered the link between organized crime and gender-based violence and concluded, on the basis of the evidence before it, that the PA would not face any forward-looking risk. I see no basis to interfere with those findings.
[52] For all these reasons, I find the Decision reasonable.
[53] The application for judicial review is dismissed.
[54] There is no question for certification.
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