Citation: 2024 FC 1976
Ottawa, Ontario, December 5, 2024
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PRESENT: The Honourable Mr. Justice Southcott
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BETWEEN:
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WELLINGTON RODRIGUES TEIXEIRA
LILIAN RODRIGUES
ARTUR DOS SANTOS
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Applicants |
and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I. Overview
[1] This is an application for judicial review of a decision by the Refugee Protection Division [RPD] dated August 14, 2023 [the Decision]. In the Decision, the RPD rejected the Applicants’ claims as Convention refugees or persons in need of protection under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and further found that their claims were manifestly unfounded and had no credible basis, pursuant to section 107.1 and subsection 107(2) of the IRPA respectively.
[2] As explained in further detail below, this application is allowed, because the RPD unreasonably analysed the effect of the Applicants’ delay in claiming refugee status upon their ability to establish subjective fear and therefore the credibility of their claims.
II. Background
[3] The Applicants are a married couple and their son, who are all citizens of Brazil.
[4] The Applicants claim that, in May 2005, the adult male Applicant [the Principal Applicant] and a co-worker witnessed a murder in which the killer was a police officer. The Principal Applicant was supposed to go to the police station to give a statement but found out that his co-worker, the other witness to the murder, was shot and killed on his way to the station. As a result, the Principal Applicant hid, obtained his passport, fled Brazil in July 2005, and crossed into Canada from the United States [US] without being detected by authorities.
[5] The Applicants further claim that the police officer went to prison for the murder but was released after five years and that, in March 2016, the adult female Applicant [the Associate Applicant] experienced threatening events, including a friend allegedly being shot by the police officer while trying to protect the Associate Applicant. The Associate Applicant and her son left Brazil in April 2016 and in May 2016 crossed into Canada from the US, again without being detected by authorities.
[6] In April 2022, the Applicants initiated a claim for refugee protection, resulting in hearings before the RPD in June and August 2023. On August 14, 2023, in the Decision that is the subject of this application for judicial review, the RPD rejected their claims.
III. Decision under Review
[7] The RPD found that the Applicants were not credible, because of the number of years they were in Canada without seeking refugee protection, all while working illegally and failing to regularize their status despite claiming to fear being returned to Brazil. The RPD rejected the Principal Applicant’s explanation for the delay - that he did not seek protection because he did not speak English, because other Brazilians told him that Canada was deporting Brazilians, and because he subjectively believed that the Applicants’ agents of harm in Brazil would find out if they made a refugee claim. The RPD found the Applicants’ delay in making their refugee claims, without a reasonable excuse, to be determinative of their credibility, making a general finding that their testimony lacked credibility.
[8] The RPD also made adverse credibility findings based on: (a) material changes to the Applicants’ Basis of Claim form [BOC] narrative days before their hearing, with those changes coinciding with a newspaper article, filed by the Applicants as evidence, that would otherwise have contradicted their narrative; and (b) material inconsistencies in omissions between the BOC narrative, related to fear of gender-based violence, and the Associate Applicant’s testimony at the hearing.
[9] The RPD further concluded that newspaper articles the Applicants submitted in support of their claim were fraudulent.
[10] Based on these findings, the RPD rejected the Applicants’ claims, found pursuant to section 107.1 of the IRPA that their claims were manifestly unfounded, and found pursuant to subsection 107(2) of the IRPA that their claims had no credible basis.
IV. Issues and Standard of Review
[11] The Applicants raise the following issues for the Court’s determination:
- Was the RPD’s assessment of the Applicants’ credibility reasonable?
- Did the RPD error in concluding that the Applicants’ claim had no credible basis?
[12] The standard of reasonableness applies to the Court’s consideration of these issues (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16-17).
V. Analysis
[13] My decision to allow this application for judicial review turns on the Applicants’ argument that the RPD unreasonably analysed the effect of their delay in claiming refugee protection. It is clear from the Decision’s multiple statements to this effect that the RPD considered the delay, absent a credible explanation, to be determinative of the Applicants’ credibility and indeed resulted in a general finding that their testimony was not credible.
[14] In my view, the aspect of the Decision that undermines the reasonableness of the RPD’s analysis is its reliance on a conclusion that a refugee claimant should not be able to benefit from their own misconduct or wilful blindness. As the Applicants submit, the RPD refers to the doctrine of clean hands in support of this conclusion. The RPD also references the principle that ignorance of the law is no excuse. The Applicants argue that the RPD’s duty was to assess the Applicants’ evidence about why they were genuinely afraid of returning to Brazil but that the RPD instead engaged in analysis that was inapplicable to that assessment. As explained below, I agree with the Applicants’ position.
[15] The RPD recognizes the existence of jurisprudence establishing that, in the absence of reasonable explanations, significant delay in making a refugee claim can be fatal to the success of the claim. The RPD describes the logic as being that a significant delay in claiming can undermine the claimant’s assertion of the subjective fear component of the analysis required under section 96 of the IRPA and by extension the overall credibility of the claimant, which is relevant to both section 96 and subsection 97(1). I agree with this explanation of the relevant logic.
[16] However, in conducting its analysis of the effect of the Applicants’ delay, the RPD stated that the Applicants subjectively believed that, by making a refugee claim, they would end up being deported back to Brazil or their agent of harm would find out and they would somehow be placed at risk. The RPD described these beliefs as uninformed subjective beliefs about the refugee process.
[17] The RPD then explained why it concluded that such uninformed beliefs could not displace the Applicants’ obligation to take reasonable steps to obtain official information or legal advice about the process. Consistent with its reference to clean hands and ignorance of the law, the RPD reasoned that the fact Canada may or may not have deported Brazilians in the past did not excuse the Applicants’ intentional decision to work and live in Canada illegally. The RPD also reasoned that the Applicants’ circumstances actually put them at greater risk of visibility to authorities and resulting detection and deportation. The RPD considered the Applicants’ explanations for their delay in claiming refugee status but concluded that they had the means to obtain information about the refugee process and initiate timely claims and should have done so, rather than living and working in Canada illegally.
[18] I agree with the Applicants that this analysis, to the effect that the Applicants’ subjective beliefs surrounding the refugee process were not objectively reasonable and that they should therefore be faulted for failing to take steps to regularize their status, does not represent a logical basis for the adverse credibility finding.
[19] As the RPD noted, delay in claiming refugee status, in the absence of a reasonable explanation for the delay, can undermine the claimant’s assertions of subjective fear. In other words, if the claimant has significantly delayed filing a claim, that may lead to a conclusion that the claimant does not actually fear persecution or harm as asserted. The fact that fear is asserted, when it does not actually exist, can in turn undermine the claimant’s credibility. This chain of analysis does not apply if the claimant has a reasonable explanation for the delay, because then the assertion of subjective fear is not undermined. However, the reasonableness of the explanation, while obviously involving an objective standard, represents a means of assessing whether the claimant’s explanation should be believed.
[20] The difficulty with the RPD’s reasoning stems from the fact that it accepted that the Applicants subjectively believed that making refugee claims would subject them to a risk of deportation or otherwise put them at risk. It was therefore not intelligible for the RPD to undertake an analysis to the effect that the Applicants could and should have taken steps to inform themselves as to the workings of the refugee process, as a result of which they would have realized that their beliefs about the process were incorrect. In other words, regardless of whether they were reasonably held, if the Applicants’ actual beliefs were that the refugee process would imperil them rather than protect them, it is not apparent how those beliefs failed to explain their delay in claiming protection. It is therefore not apparent how that delay can undermine their assertions of subjective fear and therefore their credibility.
[21] Of course, it is available to a decision-maker to consider a claimant’s explanation for delay, conclude that the explanation is unreasonable, and therefore disbelieve both the explanation and the claimant’s assertion of subjective fear. However, that was not the RPD’s analysis in the case at hand.
[22] This logical error in the Decision undermines the reasonableness of the RPD’s assessment of the significance of the Applicants’ delay in claiming refugee protection and therefore the reasonableness of its general finding of non-credibility. Given the significance of the RPD’s credibility analysis for the RPD’s rejection of the Applicants’ claims and its manifestly unfounded and no credible basis findings, the Decision as a whole is unreasonable.
[23] In so concluding, I am conscious of the fact that the RPD also found that the articles submitted by the Applicants in support of their claim were fraudulent. However, it is clear from the RPD’s reasoning that its conclusions regarding the articles, and in particular its rejection of the Applicants’ explanation surrounding the articles, were influenced in part by its conclusion that the Applicants’ evidence was no longer entitled to the presumption of truthfulness.
[24] Based on the above findings, this application for judicial review will be allowed, and my Judgment will set aside the Decision and return the matter to a differently constituted panel of the RPD for redetermination. It is therefore unnecessary for the Court to consider the Applicants’ other arguments.
[25] Neither party proposed any question for certification for appeal, and none is stated.
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