JUDGMENT AND REASONS

I. Overview

[1] The Applicants are a family: Mr. Aguilar Marquez, the Principal Applicant, his wife and their minor child. The Applicants applied for refugee protection in Canada because of their fear that the police in Mexico could not adequately protect them from the violence of members of a criminal gang who had previously kidnapped Mr. Aguilar. The Refugee Protection Division (“RPD”) dismissed their claim on the basis that the gang did not have the motivation to pursue the family in the proposed Internal Flight Alternative (“IFA”) of Merida. The Applicants appealed the RPD’s decision. The Refugee Appeal Division (“RAD”) confirmed the RPD’s decision, also finding the Applicants had a viable IFA and therefore were not Convention Refugees or persons in need of protection.

[2] The Applicants challenge the RAD’s refusal of their appeal on judicial review. The Applicants make three principal arguments: first, the RAD erred in their understanding of key facts which impacted their analysis of the agent of persecution’s motivation; second, the RAD improperly relied on the agent of persecution’s lack of contact with the Applicants’ family; and lastly, the RAD did not take into account a psychological report in its assessment of the reasonableness of the IFA.

[3] I am not persuaded that there is a sufficiently serious shortcoming in the RAD’s reasons on any of these issues raised by the Applicants. As I will explain, the RAD’s decision is transparent, intelligible, and justified in light of the record before it. I see no basis to interfere with the decision. Accordingly, the application for judicial review is dismissed.

II. Issue and Standard of Review

[4] The Applicants are challenging the merits of the RAD’s IFA analysis. The parties agree, as do I, that I ought to review the substance of the decision on a reasonableness standard (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 23).

[5] In Vavilov, the Supreme Court of Canada described the reasonableness standard as a deferential but nonetheless “robust form of review”, where the starting point of the analysis begins with the decision maker’s reasons (at para 13). A decision maker’s formal reasons are assessed “in light of the record and with due sensitivity to the administrative regime in which they were given” (Vavilov at para 103). The Court described a reasonable decision as “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). Administrative decision makers, in exercising public power, must ensure that their decisions are “justified, intelligible and transparent, not in the abstract, but to the individuals subject to it” (Vavilov at para 95).

III. Analysis

[6] It is well-established that a claim can be dismissed on the basis that relocation to an IFA would be both a safe and reasonable option for the claimant. The two-step test first evaluates the safety of the relocation: whether the claimant would be subject to a serious possibility of persecution under section 96 and/or to a risk of harm under subsection 97(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 in the proposed IFA. This Court has affirmed that in evaluating whether there is section 96 or section 97 risk in the IFA, the decision-maker can consider the means and motivation of the agent of persecution in pursuing the claimants in the proposed locations. At the second stage, the inquiry is whether it would be reasonable, in all the circumstances, to expect a claimant to seek safety in the IFA (Rasaratnam v Canada (Minister of Employment and Immigration) (CA), 1991 CanLII 13517 (FCA), [1992] 1 FC 706 at pp 709-711; Sanchez v Canada (Citizenship and Immigration), 2007 FCA 99 at para 16).

[7] The Applicants challenge both stages of the IFA test. On the first stage, the Applicants argue that the RAD erred in finding the agent of persecution would not be motivated to find the Applicants in the proposed IFA. At the second stage, they argue that the RAD failed to take into account the findings of a psychologist.

A. Motivation finding

[8] The Applicants argue that the RAD erred in its understanding of two key factual constraints which in turn would have impacted how it understood the extent of the agent of persecution’s motivation.

[9] The first issue is related to whether at a scheduled ransom drop, the police killed one of the criminal gang members who had been involved in Mr. Aguilar’s kidnapping. I have carefully reviewed the Applicants’ view of these events and that of the RAD’s, considering the police report and the newspaper articles. Ultimately, the Applicants are asking this Court to reweigh the evidence before the RAD and come to a different conclusion. The RAD understood the Applicants’ view of these events and addressed this view in detail in their reasons and why they did not accept the Applicants’ view of the record. This was a reasonable finding that was open to the RAD to make based on the evidence before it. I see no basis to interfere with the RAD’s factual determination on this point.

[10] The second issue is whether the police report contains the fact that Mr. Aguilar had discussed with his captors their affiliation with a particular cartel. I agree with the Applicants that there is a statement in the police report about this issue, which contradicts the RAD’s finding on this point. However, in my view, this was not a critical finding because ultimately the RAD accepted the Applicants’ evidence about the agents of persecution belonging to a powerful drug cartel. This was a minor misstep that did not affect the RAD’s analysis of the determinative issue of IFA.

[11] The Applicants also argue that it was unreasonable for the RAD to have found a lack of motivation because of an absence of contact by the agent of persecution, citing Rivera Benavides v Canada (Citizenship and Immigration), 2020 FC 810 at para 75; Losada Conde v Canada (Citizenship and Immigration), 2020 FC 626 at paras 91–93; Monsalve v Canada (Citizenship and Immigration), 2022 FC 4 at para 17; Campos v Canada (Citizenship and Immigration), 2022 FC 1641 at paras 70–71. These are context-specific evaluations that depend on the facts of the claim and the reasons given by the decision-maker.

[12] As I explained in Canifru Candia v Canada (Citizenship and Immigration), 2024 FC 917 at paragraph 19, it depends on how the RAD considered a number of factors including, among others: the reason the claimants were initially targeted, the steps the agents of persecution have taken, the length of time that has passed without contact, and the relationship the agents of persecution have to the applicants. There is no magic formula to making this determination; an absence of evidence of contact for X number of years does not necessarily establish a lack of motivation (Rendon Segovia v Canada (Citizenship and Immigration), 2023 FC 868 at para 23).

[13] In this case, the RAD was thorough in considering the particular circumstances of the Applicants’ claim in evaluating the cartel’s motivation. The RAD explained that they did not accept the Applicants’ view that the police had killed one of the cartel members involved in the kidnapping. As I explained above, this finding was one that was reasonably open to the RAD to make based on the evidence before it. The RAD also explained that there had been no contact with the Applicants or any of their family members or relatives remaining in Mexico, since the ransom was paid.

[14] I am satisfied that the RAD considered the nature of the threats and the agent of persecution and, based on the evidence before it, reasonably found and explained their reasons for finding the Applicants had not established that the cartel remained interested in finding them in the proposed IFA.

B. Reasonableness of IFA finding

[15] The Applicants also argue that the RAD did not adequately justify its finding that treatment was available for mental health in the proposed IFA. The psychologist assessment before the RAD was limited and based on that information, the RAD found they were not satisfied that treatment was unavailable in the proposed IFA. Based on the limited evidence before the RAD, this was a determination that was reasonably open to it to make.

IV. Disposition

[16] In conclusion, I am satisfied that the RAD explained its reasons for dismissing the Applicants’ appeals in a transparent and intelligible way. I see no basis to interfere with the RAD’s decision. I dismiss the application for judicial review. Neither party raised a question for certification, and I agree none arises.

JUDGMENT IN IMM-15363-24

THIS COURT’S JUDGMENT is that

1. The application for judicial review is dismissed; and

2. No serious question of general importance is certified.

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: