Date: 20250304

Docket: IMM-13554-23

Citation: 2025 FC 391

Ottawa, Ontario, March 4, 2025

PRESENT: The Honourable Madam Justice Turley

JUDGMENT AND REASONS

I. Overview

[1] The Applicants, Nicole Massiel Quinteros Espinoza [Primary Applicant], Alejandro Andres Torres Riveros [Associate Applicant], and Dominique Nicole Torres Quinteros [Minor Applicant], seek judicial review of a Refugee Appeal Division [RAD] decision refusing their application for asylum under section 96 and subsection 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].

[2] The Applicants allege that they are at risk in Chile because the Principal Applicant’s father and uncle were anti-government activists. They attribute the loss of their baby in 2014 to the medical malpractice of a prestigious doctor who was deliberately negligent because of political animosities towards their family. They fled to Canada in 2022, claiming that they are not safe in Chile due to crime.

[3] The Refugee Protection Division [RPD] rejected the Applicants’ claim, finding that future criminal violence in Chile is a generalized risk. The RAD dismissed their appeal.

[4] I am allowing the judicial review application for two reasons. First, the RAD erred in rejecting the Applicants’ new evidence, about interpretation errors at the RPD hearing being irrelevant on the sole basis that their memorandum failed to articulate a breach of natural justice. Second, the RAD failed to conduct an independent analysis of the Applicants’ claim.

II. Analysis

A. The RAD erred in rejecting new evidence concerning interpretation errors

[5] While the RAD acknowledged that interpretation errors appear to have been made during the RPD hearing, it rejected the Applicants’ new evidence as irrelevant because their memorandum did not clearly articulate how they were denied natural justice:

The appellants also request that the RPD [sic] admit an RPD Hearing audit interpreter affidavit and a corrected partial transcript of the RPD Hearing as new evidence. The RAD is not admitting these documents as new evidence either. While these documents do indicate that the RPD Hearing interpreter made some errors in interpreting the appellants’ answers to questions, the appellants’ Memorandum does not contain an argument that clearly articulates if and how the appellants were denied natural justice by these interpretation errors. Indeed, the appellants’ Memorandum fails to contain any argument that the appellants were denied natural justice in any way at all. The RAD is therefore not persuaded that these documents are relevant to the appeal. As the RAD finds these documents to be irrelevant, they are therefore not admitted as new evidence by the RAD and were therefore not considered by the RAD in deciding this appeal.

[Citations omitted; Emphasis added]

Reasons and Decision of the Refugee Appeal Division dated October 11, 2023, at para 6 [RAD Decision]

[6] Subsection 3(3) of the Refugee Appeal Division Rules, SOR/2012-257 [RAD Rules] specifies what an appellant must include in their record on appeal to the RAD. A written statement is required indicating whether they are relying on any new evidence under subsection 110(4) of the IRPA: RAD Rules, s 3(3)(d)(i). The appeal record must also include the documentary evidence relied upon: RAD Rules, s 3(3)(e). Furthermore, a memorandum including full and detailed submissions regarding “how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the [IRPA] and how that evidence relates to the appellant” is required: RAD Rules, s 3(3)(g)(iii).

[7] The Respondent argues that the RAD cannot be faulted for failing to consider arguments that were not raised on appeal: Canada (Citizenship and Immigration) v RK, 2016 FCA 272 at para 6. However, the Applicants did squarely raise the alleged interpretation errors. In accordance with the RAD Rules, the Applicants’ record included the documentary evidence relied upon, namely the affidavit of an audit interpreter attesting to several errors made by the RPD interpreter.

[8] Furthermore, the Applicants’ appeal record included a written statement in accordance with subparagraph 3(3)(d)(i) of the RAD Rules. That written statement referred to the fact that they were submitting new evidence pursuant to subsection 110(4) of the IRPA, which they argue “meet the criteria of credibility, relevance, newness and materiality”.

[9] In addition, the Applicants’ written statement specified how the interpretation errors impacted their hearing before the RPD:

4. Importantly, the RPD hearing, which ought to have served as an opportunity to expand upon their narrative, had the opposite effect. This is due to the fact that inadequate interpretation during the hearing contributed to changes in the interpretation of the questions and answers and appears to have led to confusion about the different aspects of the Appellants’ claim. These issues are documented in the translation affidavit of Virginia Ruiz, who audited the translation provided at the hearing.

5. Specifically, a review of the audio reveals that the RPD conflates two distinct elements of the claim surrounding Alejandro's targeting at his workplace. Importantly, Alejandro was targeted by both the agent of persecution, as well as common thieves at his workplace. These are distinct incidents; however, the Member appears to conflate these events. We submit that the translation during the hearing, coupled with the brevity of the BOC narrative, contributed to the confusion. A new hearing with a proper translator is required to properly assess the Appellants’ evidence in the case at bar.

[10] While the memorandum included in the Applicants’ appeal record referred to the alleged interpretation errors, it did not explain how the evidence met the requirements of subsection 110(4) of the IRPA.

[11] This Court has determined that it is appropriate for the RAD to consider the admissibility of new evidence despite applicants failing to fully comply with the requirements of the RAD Rules: Kumar v Canada (Citizenship and Immigration), 2024 FC 127 at para 8. Indeed, Justice Sadrehashemi held that “regardless of whether submissions are made by the parties, the RAD remains obligated to consider whether new evidence tendered meets the requirements for admission under subsection 110(4) of IRPA” [emphasis added]: Benavides Quispe v Canada (Citizenship and Immigration), 2021 FC 791 at para 19 [Benavides Quispe]. In that case, the RAD did just that — after commenting on the applicant’s failure to provide any direct submissions about how their new evidence was admissible, the RAD proceeded to “look at the evidence and assessed whether it met the requirements under the statute and the further constraints at common law of the newness, relevance and credibility of documents”: Benavides Quispe at para 19.

[12] By contrast, here the RAD simply rejected the new evidence out-of-hand as irrelevant because the Applicants’ memorandum did not clearly articulate “if and how [they] were denied natural justice”. In doing so, the RAD failed to consider the evidence in its own right to determine whether it met the prescribed admissibility requirements.

[13] Furthermore, while the Applicant’s memorandum did not include arguments on admissibility, their written statement addressed the relevance and the impact of the interpretation errors on their case. The RAD, however, makes no mention of that statement in its decision. The RAD’s reasoning amounts to preferring form over substance, and in so doing, fails to engage with the totality of the Applicants’ submissions: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 127–128 [Vavilov]. At the judicial review hearing, both parties made submissions about the substance of the new evidence and its relevance to the Applicants’ claim. However, it is not for this Court sitting in review to make that determination: Vavilov at para 125.

B. The RAD failed to conduct an independent assessment

[14] While the above-noted error is sufficient to overturn the decision, I also find that the RAD failed to independently assess the Applicants’ claim. Having reviewed the decision, I am unable to identify any independent observations made by the RAD indicating that it “carrie[d] out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred”: Canada (Citizenship and Immigration) v Huruglica, 2016 FCA 93 at para 103.

[15] Rather, the RAD’s analysis largely consists of block quotes from the RPD decision. Where the RAD does engage with the Applicants’ arguments, it fails to provide any explanation as to why it concurs with the RPD’s reasoning. For example, the Applicants argued that the RPD erred in finding that the criminal violence faced by the Principal and Minor Applicants is a generalized risk that does not qualify for refugee protection. The RAD addressed this alleged error by quoting verbatim the relevant nine paragraphs of the RPD decision. Then, the RAD dismissed the Applicants’ arguments without any meaningful analysis, simply referring to the quoted passages to find that “the RPD did conduct an assessment of the [Applicants’] personal circumstances as among each other as compared to other Chileans”: RAD Decision at para 12. The RAD’s reasoning is devoid of independence and “merely reiterates the RPD’s analytical process”: Nwankwo v Canada (Citizenship and Immigration), 2024 FC 1827 at para 66.

[16] In my view, the RAD failed to fulfill its obligation to “explicitly state its own findings by more than simply limiting itself to commenting as to whether the RPD committed any errors in its assessment of the evidence”: Gomes v Canada (Citizenship and Immigration), 2020 FC 506 at para 48 [Gomes]. In this case, Justice Pamel’s conclusion in Gomes is particularly apt:

[52] It seems to me that it is not sufficient for the RAD to simply undertake its own analysis of the record; it must also explicitly express its own findings, thereby allowing the parties to transcend the strict letter of the decision to understand where the RAD stands on the key issues and the chain of analysis that led to the determination. Such an expression need not be lengthy, but it must allow the parties to understand, one way or the other, where the RAD comes down on the issues raised in the case (Patel v Canada (Citizenship and Immigration), 2020 FC 77 at para 17 [Patel]).

[17] I am not satisfied that the RAD undertook its own analysis of the record in this case. Its reasons are not justified, transparent nor intelligible: Vavilov at para 99.

III. Conclusion

[18] For these reasons, the application for judicial review is granted and the matter is remitted for redetermination to another panel.

[19] The parties did not raise a question for certification and I agree that none arises in this case.

JUDGMENT in IMM-13554-23

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is allowed.

2. The Refugee Appeal Division’s decision dated October 11, 2023, is set aside and the matter is remitted for redetermination by another panel.

3. There is no question for certification.

“Anne M. Turley”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: