Background
Ruth Sarahi Herrera Ocana, a Mexican national, sought judicial review under section 72 of the Immigration and Refugee Protection Act of a Refugee Appeal Division (RAD) decision finding she was neither a refugee nor a person in need of protection because she had an internal flight alternative (IFA) in Mexico. The RPD and the RAD were willing to assume that the allegations of mistreatment of the Applicant at the hands of a man she entered into a relationship with in February 2022 were true. According to her testimony, the relationship deteriorated into physical, sexual and emotional abuse, including being locked in a room in the house she shared with the agent of persecution and his mother in Cardenas, Tabasco. After an escape attempt in which the agent of persecution intercepted her at a Cancun bus station and forced her return, her mother arranged a passport and her parents chose Canada as her destination; she arrived in Vancouver and claimed refugee protection.
Before the Refugee Protection Division (RPD), the Applicant contended her former partner was a member of the Cartel Jalisco Nueva Generacion (CJNG) and was responsible for the September 2023 disappearance and murder of her half-brother. The RPD raised the availability of an IFA at the outset of the hearing, placing the burden on the Applicant to show either a serious possibility of persecution in the IFA or that conditions there would be unreasonable. The RAD reviewed the RPD decision on a correctness standard, meaning no deference was owed to the RPD decision; the Applicant introduced no new evidence and requested no hearing, so the RAD decided on the record and counsel’s submissions. The RAD concluded both prongs of the IFA test had been met against the Applicant.
The Court’s Holding
Justice Roy dismissed the application, holding that the Applicant had not established the RAD’s IFA finding was unreasonable under the Vavilov framework. The Court emphasized that the only decision under review was the RAD’s, and that reasonableness review does not permit the Court to reweigh evidence or substitute its own view of the merits. On the first prong, the RAD agreed with the RPD that the Applicant’s evidence of cartel membership and involvement in her half-brother’s murder amounted to speculative inferences and beliefs rather than proof on a balance of probabilities; the so-called presumption of truthfulness applies to facts recounted by an applicant, not to inferences based on speculation. The RAD further found the agent of persecution lacked the means and motivation to locate the Applicant in the IFA: he did not know she was in Canada, did not know her children lived with her parents in the same city, and had made no attempt to contact remaining family members in Mexico. The assertion made by the RPD that there exists no danger was said to constitute a misunderstanding of the applicable standard; the Applicant instead had to show a serious possibility of persecution in the IFA, which had not been shown.
On the second prong, the Court noted the Applicant did not pursue the argument that IFA conditions would be unreasonable, either in her Memorandum of Fact and Law or at the hearing. It was considered that the Applicant is young and in good health, has completed high school, and has diverse work experience; she would be able to secure adequate employment and accommodation in the IFA. The RAD held that invoking the epidemic of abuse against women in Mexico misstated the burden: it is for the applicant to positively establish that the IFA is not viable by demonstrating the existence of conditions that would jeopardize her life and safety in relocating, supported by actual and concrete evidence. The Court found no fundamental flaw—no failure of internal rationality and no untenability in light of factual and legal constraints—had been identified, let alone demonstrated.
Key Takeaways
- The RAD reviews RPD decisions on a correctness standard with no deference owed, while the Federal Court reviews the RAD’s decision only for reasonableness under Vavilov; the Court will not conduct a de novo reassessment of the evidence.
- The presumption of truthfulness covers facts experienced and recounted by an applicant, but does not extend to inferences or speculation, such as beliefs about cartel affiliation or responsibility for a third party’s murder.
- Once an IFA is raised, the applicant bears the burden on both prongs; the second prong sets a very high threshold requiring actual and concrete evidence of conditions that would jeopardize life and safety, and the Applicant here did not pursue that prong on judicial review.
- The judicial review application was dismissed and no serious question of general importance was stated.
Why It Matters
The decision illustrates the layered standards of review in refugee litigation: correctness as between the RAD and RPD, and reasonableness as between the Federal Court and the RAD. It confirms that applicants challenging an IFA finding must do more than point to past abuse or speculative fears; they must adduce concrete evidence of the agent of persecution’s present means and motivation, and of jeopardy to life and safety in the proposed IFA. The ruling also underscores that arguments not pursued in written submissions or at the hearing—here, the second prong—cannot ground a finding of unreasonableness.