Estrada Urbina v. Canada (Citizenship and Immigration)

Estrada Urbina v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2024-11-07 Neutral citation 2024 FC 1781 File numbers IMM-7524-23 Decision Content Date: 20241107 Docket: IMM-7524-23 Citation: 2024 FC 1781 [ENGLISH TRANSLATION] Ottawa, Ontario, November 7, 2024 PRESENT: The Honourable Madam Justice Azmudeh BETWEEN:

EDDER JOSE ESTRADA URBINA Applicant and

THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION Respondent

JUDGMENT AND REASONS I. Overview [1] This case involves an application for judicial review against a decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB) confirming a decision of the Refugee Protection Division (RPD) that rejected the claim for refugee protection of the applicant, a citizen of Honduras. [2] The applicant had alleged that he was a person of interest to the Mara Salvatrucha (“MS‑13”) criminal group. After considering all of the evidence, the RAD confirmed the RPD’s finding that the applicant’s allegations were not credible. For the reasons set out below, this application for judicial review is allowed. II. Standard of review [3] The parties submit, and I agree, that the standard of review is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]). III. Analysis [4] The applicant submits that the RAD erred in failing to find a nexus to a Convention ground, namely, his imputed political opinion. In the applicant’s view, the RAD member’s decision was unreasonable because it recognizes that gangs had infiltrated the police while at the same time failing to use this fact to establish the applicant’s credibility. However, this point is not determinative, as the RAD ultimately rejected the appeal on grounds of credibility. [5] A series of implausibility findings led the RAD member to conclude

that the applicant was not credible. [6] Adverse credibility findings must be reasonable and not be based solely on conjecture or speculation. It is not appropriate for decision makers to base their credibility assessments on their own ideas of how events actually unfolded or should have unfolded. [7] When the RAD finds a lack of credibility based on the implausibility of evidence, there must be support in the record on which to base it (see Yu v Canada (Citizenship and Immigration), 2015 FC 167). This also means that all evidence supporting the plausibility of a claimant’s allegations must be taken into account and weighted before concluding that the allegations are implausible (see Hassan v Canada (Citizenship and Immigration), 2010 FC 1136 at para 13; George v Canada (Citizenship and Immigration), 2019 FC 1385 at paras 12 and 35–39. In that case, the RPD made an overall finding of implausibility of Mr. George’s overall account, finding it “implausible that after being outside his country for so many years, the agents of persecution [were] still looking for him”. The Court held at para 38 that “the RPD’s cursory conclusion of implausibility, undertaken without assessment of relevant evidence [the applicant had filed letters and statements from ten individuals], and without apparent consideration for the cultural and factual context in which the stated fear of persecution

arose, [was] unreasonable” [emphasis added]. [8] In Santos v Canada (Minister of Citizenship and Immigration), 2004 FC 937 at para 14, Mosley J cites passages from Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCTD 776 and Leung v Canada (Minister of Employment and Immigration), [1994] FCJ No 774 (FCTD) (QL) in which the following principles are stated: In Valtchev [citation omitted], Justice Muldoon stated the following . . . with regards to plausibility findings of the Board: A tribunal may make adverse findings of credibility based on the implausibility of an applicant’s story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant’s milieu. [Emphasis added.] [9] Accordingly, implausibility findings must be based on established evidence as well as a clear rationalization process supporting

the Board’s inferences, and should refer to relevant evidence which could potentially refute such conclusions. [10] That is not the case here. The RAD member made a number of implausibility findings, even if they were not formulated as such, that rendered the decision unreasonable on the whole. The RAD rejected the material fact that MS‑13 had an interest in the claimant. The RAD implicitly made the following implausibility findings: The RAD concluded that the claimant lacked credibility because he had been unable to comment on the state of mind of his agents of persecution. For example, the RAD criticized the refugee protection claimant for not knowing why MS-13 had falsely accused him of reporting them to the police, why they would wait three years before acting and/or why they had not also targeted members of his family (at paragraphs 10, 20). The RAD also found it implausible that MS-13 would look for him at his mother’s house but not at his workplace, when his workplace was only a short distance from there by bicycle and the gang was known for being able to track down its victims easily (para 14). Why the member expected the gang to search for him in one place and not to search for him in another is unclear. The RAD found it implausible that the gang had not found the claimant when he was hiding in the hotel where he had previously worked (para 18). The RAD found it

implausible that MS-13 had not gone after the claimant’s wife given that the documentary evidence stating that they use sexual violence contradicted the claimant’s assertions that they had not gone after her because they were not interested in women (para 21). The RAD implicitly interpreted the claimant’s speculation as to why the gang had not targeted his wife as a form of implausibility. [11] I find that the RAD’s implausibility findings were largely based on the member’s subjective beliefs and expectations about how the gang would behave, and not necessarily on evidence. This is the material evidence that led the RAD to conclude that MS‑13 was not interested in the applicant. The implicit implausibility findings in the circumstances broke the logical chain of reasoning and rendered the decision, taken as a whole, unreasonable. [12] The respondent argues that the facts as found by the RAD amounted to concluding that the gang lacked the motivation and interest necessary to target the applicant. In reality, the RAD rejected the very existence of the facts. Thus, it grounded this conclusion in erroneous credibility findings related to implausibility. The reasonableness of a decision is not limited to its final outcome; it depends on the existence of a clear chain of reasoning justifying its conclusions (Vavilov, at paras 100–101). In this case, the member rejected the facts on

the basis of an assumption that the events should have unfolded differently. This is unreasonable. IV. Conclusion [13] I therefore allow this application for judicial review. The matter is referred back to the RAD for redetermination by a differently constituted panel. [14] The parties did not propose a question for certification and I agree that none arises in this case. JUDGMENT in IMM-7524-23 THIS COURT’S JUDGMENT is as follows: The application for judicial review is allowed. “Negar Azmudeh” Judge

FEDERAL COURT

SOLICITORS OF RECORD DOCKET: IMM-7524-23 STYLE OF CAUSE: EDDER JOSE ESTRADA URBINA v MCI PLACE OF HEARING: MONTRÉAL, QUEBEC, VIA VIDEOCONFERENCE DATE OF HEARING: OCTOBER 28, 2024 REASONS FOR JUDGMENT BY:

AZMUDEH J DATED: NOVEMBER 7, 2024 APPEARANCES: Emmanuel Roy-Allain

FOR THE APPLICANT Larissa Foucault

FOR THE RESPONDENT SOLICITORS OF RECORD: Emmanuel Roy-Allain SR Avocats Montréal, QC

FOR THE APPLICANT Larissa Foucault Department of Justice Montréal, QC

FOR THE RESPONDENT