Docket: IMM-3566-24
Citation: 2024 FC 2061
Toronto, Ontario, December 18, 2024
PRESENT: The Honourable Mr. Justice Ahmed
BETWEEN: |
EIRA VIANEY VARGAS VEGA MIA SOFIA MORALES VARGAS CAMILA MORALES VARGAS
CESAR ADRIAN MORALES PACHECO
|
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicants seek judicial review of a negative decision of the Refugee Appeal Division (the “RAD”
) dated December 14, 2023 in which the Applicants’ claims for refugee status were refused due to a viable internal flight alternative (“IFA”
) in Merida, Mexico.
[2] The Applicants submit that the RAD’s decision is unreasonable, as the RAD consulted outdated country condition evidence and failed to justify its conclusions against the evidentiary record.
[3] I agree, in part, with the Applicants. For the reasons that follow, I find the RAD’s decision unreasonable and grant this application for judicial review.
II. Facts
[4] The Applicants are a family of four, consisting of Eira Vianey Vargas Vega (the “Principal Applicant”
), César Adrian Morales Pacheco (the “Associate Applicant”
), and the two Minor Applicants, C and M.
[5] The Applicants are citizens of Mexico. Before arriving in Canada, the Applicants resided in Guanajuato state.
[6] In Mexico, the Associate Applicant worked as an Uber driver. Members of a cartel forced him at gunpoint to deliver packages which he suspected contained drugs. They approached him three more times to deliver packages for them. They later attempted to recruit him into selling drugs.
[7] The Associate Applicant refused and the family relocated to another city within Guanajuato state. The Applicants resided there for a period of two years. Despite changing his phone number and his job, the cartel contacted the Associate Applicant and threatened to make him “disappear because he knew too much.”
[8] In April 2022, the Associate Applicant arrived in Canada. He obtained a Canadian phone number but continued to be contacted by the cartel, who told him they knew about his spouse and children.
[9] In December 2022, the Principal Applicant and Minor Applicants arrived in Canada. The Applicants submitted a refugee claim in January 2023.
[10] In August 2023, the Refugee Protection Division (“RPD”
) rejected their claim, finding that the Applicants had a viable IFA in Merida, a city in Yucatan state.
[11] The Applicants appealed the refusal. On appeal, the Applicants sought to introduce new evidence of human trafficking and criminal activity in the state of Yucatan.
[12] In December 2023, the Applicants’ claims were refused by the RAD. The RAD found the Applicants’ new evidence inadmissible. Determining that the cartel was not motivated to search for the Applicants and that the Applicants had failed to establish a personalized risk of harm, the RAD concluded that Merida was a viable IFA and refused the Applicants’ claims for protection pursuant to section 97 of the IRPA. This is the decision that is presently under review.
III. Issue and Standard of Review
[13] The sole issue in this application is whether the RAD’s decision is reasonable.
[14] The parties submit that the applicable standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25 (“Vavilov”
)). I agree.
[15] Reasonableness is a deferential, but robust, standard of review (Vavilov at paras 12-13, 75, 85). 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 decision that is reasonable as a whole 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).
IV. Analysis
[17] The Applicants submit that the decision is unreasonable. In the decision, the RAD consulted the National Documentation Package for Mexico dated September 29, 2022 (the “2022 NDP”
). At the time of the decision, a subsequent NDP dated September 29, 2023 (the “2023 NDP”
) was available. Since the 2023 NDP contains revisions that contradict the RAD’s findings, the RAD erred by relying on the 2022 NDP. Furthermore, the RAD mischaracterized the Applicants’ evidence, finding that the Associate Applicant’s refusal to sell drugs for the cartel did not constitute a “perceived betrayal,”
despite the Applicants’ evidence to the contrary.
[18] The Respondent submits that the RAD reasonably refused the Applicants’ claim. There is a high threshold for demonstrating that a proposed IFA is unreasonable (Ranganathan v Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 at para 15 (FCA), cited in Ehondor v Canada (Citizenship and Immigration), 2017 FC 1143 at para 10). The Respondent asserts that the Applicants have simply failed to meet this threshold. The RAD’s reliance on the 2022 NDP does not assist the Applicants, as the differences between the 2022 and 2023 NDP are slight and the RAD’s findings turn on the Applicants’ evidence, rather than country condition documents.
[19] I agree, in part, with the Applicants.
[20] As a preliminary matter, I find no error in the RAD’s refusal to consider the Applicants’ new evidence. The Applicants did not establish that their new evidence postdates the RPD decision or that they “could not reasonably have been expected”
to present their new evidence at the hearing (IRPA, s 110(4)). I agree with the RAD that the Applicants’ new evidence was therefore inadmissible pursuant to subsection 110(4) of the IRPA.
[21] Furthermore, the Respondent rightly notes that, although the RAD consulted outdated country condition evidence in its assessment of the Applicants’ safety in Merida, this error does not have a bearing on the outcome of the appeal. The revisions in the 2023 NDP which the Applicants refer to address the cartel’s capacity to locate the Applicants in Merida and the targeting of returnees by the Jalisco New Generation Cartel (“CJNG”
). However, the RAD conceded that the cartel “can find [the Applicants] in the IFA.”
Moreover, the Applicants did not allege that they would face risk as returnees. They also “testified that they were not clear on which cartel was targeting them”
and simply “submitted evidence…regarding the CJNG cartel as this was the most prominent cartel in their area.”
Consequently, I find that the RAD’s error in consulting outdated country condition evidence was not material to the decision under review.
[22] However, I agree with the Applicants that the RAD’s IFA findings were not supported by the record. According to the RAD, “[c]artels appear to track persons if they steal/lose money, due to personal rivalries, for political reasons, or perceived betrayal.”
Since none of these factors were present in this case, there was no basis for finding that the cartel would be motivated to track the Applicants in Merida.
[23] In my view, the RAD erred in concluding that “[t]here is no evidence of…perceived betrayal.”
The record indicates that the cartel had repeated contact with the Associate Applicant, disclosed information to him about their criminal activities, offered him a role in their organization, and threatened him and his family with violence when their offer was rejected. The RAD was required to justify its findings against this evidence (Vavilov at para 126). The need for an adequate justification is heightened in this case by the RAD’s determination that, “if the cartel were motivated to locate the [Applicants] in Merida, they can find them”
(see Vavilov at paras 133-135).
[24] In my view, the RAD’s justification was inadequate. The explanation offered by the RAD was that the cartel “did not state that they intended to make an example of the [A]ssociate [Applicant], they did not contact his place of work, and they made no contact with the [P]rincipal [Applicant] and the [M]inor [Applicants].”
However, the absence of these factors does not diminish the seriousness of the incidents that were put to the RAD, namely, that the Applicants were tracked and threatened after the Associate Applicant attempted to remove himself from the cartel’s drug trafficking activities. Given the evidentiary record, simply stating that there was “no evidence of…perceived betrayal”
is not sufficient in this case [emphasis added].
[25] As the determinative issue on appeal was the IFA in Merida, the RAD’s failure to justify its analysis on this issue against the facts renders the decision unreasonable.
V. Conclusion
[26] For these reasons, I find that the RAD’s decision is unreasonable and grant this application for judicial review. The RAD’s decision is not justified in light of the factual matrix of the appeal (Vavilov at para 126). No questions for certification were raised, and I agree that none rise.
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