Docket: IMM-7364-24
Citation: 2025 FC 538
Toronto, Ontario, March 24, 2025
PRESENT: Madam Justice Go
BETWEEN: |
LUIS FERNANDO MURILLO PORTILLA |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] Mr. Luis Fernando Murillo Portilla [Applicant] is a citizen of Costa Rica who left the country in his youth following the conviction of his family members in a high-profile financial crime. The Applicant lived in China from 2011 to 2019 and married a Chinese citizen in 2013. Both the Applicant and his spouse eventually filed refugee claims in Canada.
[2] The Applicant’s spouse was found to be a Convention refugee, but the Refugee Protection Division [RPD] concluded that the Applicant was not, himself, a Convention refugee or person in need of protection [RPD Decision].
[3] The Refugee Appeal Division [RAD] dismissed the Applicant’s appeal of the negative RPD determination [Decision].
[4] The Applicant seeks judicial review of the Decision. The Applicant’s only argument is that the RAD erred by failing to adequately consider and analyze whether the “discrimination”
the Applicant faces in Costa Rica cumulatively amounted to persecution. Specifically, the Applicant argues the RAD only made a cursory reference to the question of cumulative discrimination when it stated that the RPD was correct in finding he “did not establish that he faces risk that cumulatively amounts to persecution.”
He takes issue with the RAD failing to explain why his personal experiences or prospective fears did not, cumulatively, amount to persecution.
[5] Applying the reasonableness standard of review as per Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], I dismiss the Applicant’s application.
[6] As a starting point, I should point out that while the Applicant frames his argument as an issue of “cumulative discrimination,”
I understand the Applicant’s use of the term “cumulative discrimination”
to broadly refer to “cumulative harm,”
which may or may not manifest in the form of discrimination. I shall analyse his submissions according to the broader framework of cumulative harm.
[7] I note that the Applicant relies on the Federal Court of Appeal’s decision in Canada (Citizenship and Immigration) v Munderere, 2008 FCA 84, where at para 42, it held that “the Board is duty bound to consider all of the events which may have an impact on the claimant’s claim that he or she has a well founded fear of persecution, including those events which, if taken individually, do not amount to persecution, but if taken together, may justify a claim to a well founded fear of persecution.”
The Applicant also relies on Mete v Canada (Citizenship and Immigration), 2005 FC 840 at paras 4-6 for the same proposition. Neither of these cases dealt with the issue of cumulative discrimination. However, they both confirmed that a decision-maker should consider the cumulative nature of incidents directed against a claimant in order to determine whether they gave rise to persecution.
[8] The Applicant’s argument before me must fail, however, because the Applicant never raised the issue of cumulative discrimination or cumulative harm before the RAD and is now raising this issue for the first time on judicial review.
[9] The RPD, in its initial assessment of the cumulative effects, provided reasons as to why the only credibly supported allegations that the Applicant experienced, namely questioning by police, did not rise to a level amounting to persecution. The Applicant did not argue before the RAD that the RPD did not adequately explain its cumulative finding, or that the incidents he cited, if they are to be considered harassing in nature, ought to cumulatively rise to the level of persecution.
[10] In the Memorandum of Appellant [Memorandum] that the Applicant submitted, through counsel, to the RAD, the Applicant raised a litany of issues to challenge the RPD Decision, including the RPD’s assessment of the evidence submitted by the Applicant, his testimonial evidence, the RPD’s credibility findings, as well as the RPD’s analysis under both section 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c. 27. Nowhere in the Memorandum did the Applicant raise any issue as to why his personal experiences, cumulatively, should amount to persecution.
[11] At the hearing before me, counsel for the Applicant pointed to the following paragraph in the Memorandum as the Applicant’s submission with respect to the RPD’s assessment of the cumulative effect of his past experiences:
[20] The Appellant submits that the Board erred in its assessment of evidence regarding the past experiences of the Appellant with the police in Costa Rica. The Board held that his past experiences should they reoccur did not amount to persecution u.S.96 [sic]. The Appellant submits that persecution encompasses more than the risk of physical attack. In support of this submission, the Appellant relies on the Federal Court of Appeal decisions: Amayo v Minister of Employment and Immigration, [1982] 1 F.C. 520 and Rajudeen v Canada (Minister of Employment and Immigration), [1984] F.C.J. No. 610 (QL). In order to meet the definition of a Convention refugee, set out in s.2(1) of the Immigration Act, R.S.C. 1985 c-I-2, the Appellant needs to demonstrate a well-founded fear of persecution, not that he had been subjected to attacks in the past. In support of this submission, the Appellant relies on Adjei v Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.), Amayo, supra, and Rajudeen, supra. The Appellant submits that the Board’s assessment that his fears are not well-founded without analysing the evidence of realistic harm is an error.
[12] With respect, I disagree that this cited paragraph raised the argument that the Applicant now makes before the Court. Rather, in this paragraph, the Applicant took issue with the RPD’s assessment that the Applicant’s fears are not well-founded because the Applicant never experienced any physical attack. I also note that none of the cases referred to in the above passage dealt with the issue of cumulative discrimination or cumulative harm.
[13] The Respondent cites a series of cases describing the Court’s concern about hearing arguments not made before the officer or tribunal whose decision is under review: Singh v Canada (Citizenship and Immigration), 2023 FC 875 [Singh]; Ibrahim v Canada (Citizenship and Immigration), 2022 FC 1194 at para 35; Zingoula v Canada (Citizenship and Immigration), 2019 FC 201 at para 13; Owolabi v Canada (Citizenship and Immigration), 2021 FC 2 at paras 52-53; Krasilov v Canada (Citizenship and Immigration), 2023 FC 635 at para 23; Bhavnani v Canada (Citizenship and Immigration), 2023 FC 300 at para 23; Salaudeen v Canada (Citizenship and Immigration), 2022 FC 39 at para 20.
[14] I share the concerns that the Court raised in these cases. As the Court noted in Singh, the reason why the matter had to be raised before the tribunal below is “because of the role played by a reviewing court with respect to decisions made by administrative tribunals:”
Singh at para 29. The Court in Singh went on to note that, as explained in Vavilov, “the democratic principle is at the heart of the requirement for the courts to defer, to some extent, to the decision made by the administrative tribunals. At paragraph 30 of
Vavilov, the majority states that ‘it is the
very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review. [Emphasis in original]:’”
Singh at para 29.
[15] Further, as this Court noted in Dahal v Canada (Citizenship and Immigration), 2017 FC 1102 [Dahal] at para 35, “[w]here an applicant fails to raise an issue on appeal before the RAD in respect of those aspects of the RPD’s decision, it should not be able to do so before this Court.”
The same conclusion in Dahal can be drawn in the case at hand.
[16] The Applicant further submits that the RAD was duty bound to consider this issue because it conducted its own assessment, and that the issue of cumulative harm was a fundamental part of that independent assessment, regardless of whether it was raised by the Applicant.
[17] I disagree. In the context of this case, where the Applicant was represented by counsel and where the Applicant made detailed submissions to challenge specific findings in the RPD Decision, I find the RAD was not obligated to consider other aspects of the RPD findings with which the Applicant did not take issue.
[18] Finally, the Applicant submits that as the RAD adopted the RPD’s finding on cumulative harm as its own, the RAD brought the issue “into play”
such that the Decision can be impugned on the basis of that finding which was originally made by the RPD. Specifically, the Applicant points to para 16 of the Decision, where the RAD quoted from the RPD’s finding as follows:
[16] In the paragraph that follows, the RPD states:
Based on the evidence before me, it is reasonable to infer that the [Applicant] may experience further questioning of this nature upon return to Costa Rica. While I appreciate that this experience is a negative one for the [Applicant], I do not find that, should this recur in the manner or frequency he has previously experienced, this would, in and of itself, or considered alongside the other credible harms feared, amount to treatment that is persecutory pursuant to section 96 or that amounts to torture, a risk to life, or cruel and unusual punishment pursuant to s. 97.
[19] I find the Applicant cannot rely on the RAD’s tangential reference to the above paragraph to raise a new issue that he did not raise before the RAD, for two reasons.
[20] First, I note that the RAD cited this paragraph after noting its agreement with the Applicant’s submission that persecution can be more than physical harm, but it disagreed that the RPD found his fear of persecution not well-founded without analyzing the evidence of realistic harm. The RAD went on to provide its reasons in part by engaging in its own analysis of the evidence for its finding, and in part by quoting from the RPD Decision. In other words, the RAD did not cite the RPD’s finding in the context of assessing the effect of cumulative harm, but rather in assessing whether or not the RPD analyzed the issue of harm beyond “physical harm,”
as the Applicant asserted the RPD did.
[21] Second, quoting again from Singh at para 53:
If a court is to review a decision for reasonableness, it seems to me to be quite obvious that there has to be a decision to review. The Vavilov framework is predicated on a decision having been made: the reviewing court is thereafter concerned with the outcome and the decision making process followed to reach the outcome. But there must be a decision to review, and there will not be a decision if an issue is not raised.
[22] The Applicant cannot fault the RAD for not addressing the issue of cumulative harm, as the issue was never raised before it. The RAD’s analysis and reasons were responsive to the issues that the Applicant raised in his Memorandum. For these reasons, I dismiss the application.
Email this Content