Federal Court dismisses refugee protection claim

Date: 20260529 Docket: IMM-21046-24 Citation: 2026 FC 700 Ottawa, Ontario, May 29, 2026 PRESENT: The Honourable Mr. Justice Manson BETWEEN: [NAME] Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

REASONS AND

JUDGMENT I. Introduction [ 1 ] This is an application for judicial review of a Refugee Appeal Division ( “[NAME]” ) of the [NAME] decision (the “Decision” ), which confirmed that the Applicant is neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act , SC 2001, c 27 (the “IRPA” ). [ 2 ] For the reasons that follow, the application is dismissed.

II. Background [ 3 ] The Applicant, [NAME], is a citizen of Mexico. He claimed refugee protection in Canada on the grounds that he fears the [NAME] cartel, alleging that [NAME] extorted him, that he stopped paying their extortion demands, and that he then fled Mexico. He claimed that he would not be safe anywhere in Mexico if returned. [ 4 ] On May 15, 2024, the Refugee Protection Division (the “[NAME]” ) rejected the Applicant’s claim. The [NAME] found that the Applicant had viable internal flight alternatives ( “IFA” ) in Mérida, in the state of Yucatán, and Campeche, in the state of Campeche. [ 5 ] The Applicant appealed to [NAME] to challenge the [NAME]’s IFA finding. The Applicant also sought to file new evidence before [NAME], including letters from his parents, affidavits from relatives, and country condition documents. [NAME] refused to admit the proposed new evidence and dismissed the appeal on October 23, 2024.

III. The Decision [ 6 ] [NAME] first addressed the Applicant’s request to admit new evidence and identified subsection 110(4) of the IRPA as the governing statutory provision. That provision permits a person who is the subject of an [NAME] appeal to present only evidence that arose after the rejection of the claim, evidence that was not reasonably available at the time of the rejection, or evidence that the person could not reasonably have been expected in the circumstances to have presented at the time of the rejection. [ 7 ] [NAME] also referred to [NAME] v Canada (Citizenship and Immigration) , 2016 FCA 96 [ [NAME] ] and [NAME] v Canada (Citizenship and Immigration) , 2007 FCA 385 [ [NAME] ] for the proposition that, where the statutory gateway in subsection 110(4) of the IRPA is met, [NAME] must then consider whether the evidence is new, credible, and relevant before admitting it. [NAME] noted that the appellant bears the burden of making full and detailed submissions on admissibility. [ 8 ] [NAME] refused to admit the Applicant’s newly submitted family letters and affidavits, finding that while they were either undated or post-dated the [NAME] decision, their content repeated allegations already made, expressed concern about general country conditions, or described the authors’ fear for the Applicant. [NAME] did not treat the documents’ creation dates as determinative and focused on the information the documents sought to prove. [NAME] also found that there was no adequate explanation for why the information was not reasonably available at the [NAME] stage or why the Applicant could not reasonably have been expected to present it to the [NAME]. [ 9 ] [NAME] also refused to admit several country condition documents because they were already in the National Documentation Package ( “NDP” ) for Mexico or because they pre-dated the [NAME] decision and the Applicant had not explained why they were not reasonably available earlier. [ 10 ] [NAME] admitted no new evidence, it found that no oral hearing was warranted. [NAME] referred to subsection 110(6) of the IRPA and to authorities confirming that an [NAME] appeal is ordinarily a paper-based appeal and that an oral hearing is an exception where new evidence meeting the statutory criteria is admitted. [ 11 ] On the merits, [NAME] identified IFA as the determinative issue and applied the two-pronged IFA test. It found that the Applicant did not face a serious possibility of persecution under section 96 of the IRPA or a section 97 risk in the proposed [NAME]. [NAME] found that the Applicant’s claim was based on criminal extortion, not persecution based on race, religion, nationality, membership in a particular social group, or political opinion. [NAME] further found that the evidence did not show that [NAME] have either the means or the motivation to pursue the Applicant to the proposed [NAME]. [ 12 ] On the second prong, [NAME] found that the Applicant had not shown that relocating to Mérida or Campeche would be unreasonable. It accepted that the Applicant had been in Canada for more than two years and that he alleged loss of connection in Mexico and psychological vulnerability. It found, however, that the Applicant had not provided actual and concrete evidence that relocation would jeopardize his life or safety. [ 13 ] [NAME] also addressed state protection. The Applicant had submitted before [NAME] that state protection was the main issue. [NAME] disagreed. Because it found that the Applicant had a viable IFA, it found that a separate state protection analysis was unnecessary. [ 14 ] [NAME] also addressed the Applicant’s reference to section 108 of the IRPA and found that the Applicant had not developed submissions showing how the provision applied.

IV. Issues [ 15 ] The issues are: Has the Applicant established a breach of procedural fairness arising from alleged ineffective assistance by his former representative? Was the Decision reasonable? V. Standard of Review [ 16 ] The standard of review with respect to the Applicant’s procedural rights is correctness or a standard with the same import ( [COMPANY] v Canada (Attorney General) , 2018 FCA 69 at paras 34-35 and 54-55, citing [NAME] v [NAME] , 2014 SCC 24 at para 79). Allegations of ineffective assistance by former counsel or another authorized representative are assessed through the procedural fairness framework, in which the Applicant must establish that: the previous representative’s acts or omissions constituted incompetence or negligence; but for the impugned conduct, there is a reasonable probability that the outcome would have been different (in other words, a miscarriage of justice has occurred as a result of the conduct); and the representative had a reasonable opportunity to respond to an allegation of incompetence or negligence ( [NAME] v Canada (Citizenship and Immigration) , 2021 FC 1388 at para 48; [NAME] v Canada (Citizenship and Immigration) , 2024 FC 1522 [ [NAME] ] at paras 21-24). [ 17 ] The burden of proof to demonstrate counsel incompetence is very high and the Court begins from the presumption that counsel’s conduct fell within the range of reasonable professional assistance ( R v [NAME] , 2000 SCC 22 at para 27; [NAME]. v [NAME] , 2018 FCA 127 at para 75; [NAME] at para 22). [ 18 ] [NAME]’s substantive findings are reviewed on the reasonableness standard of review ( Canada (Minister of Citizenship and Immigration) v [NAME] , 2019 SCC 65 [ [NAME] ] at para 25) including [NAME]’s determination of the admissibility of new evidence and whether to hold a hearing.

VI. Analysis A. Procedural Fairness Arising from Assistance by Former Representative [ 19 ] The Applicant submits that his former representative failed to comply with rule 3(3)(g)(iii) of the Refugee Appeal Division Rules , SOR/2012-257 which required full and detailed submissions explaining how the proposed new evidence met subsection 110(4) of the IRPA . The Applicant argues that this omission prevented [NAME] from admitting important evidence from his parents, uncle, and cousins. He submits that the family evidence addressed the determinative issue of IFA and that there is a reasonable probability that his [NAME] appeal would have been decided differently had former counsel made proper submissions. [ 20 ] The Respondent submits that the allegation fails at both the incompetence and prejudice stages. The Respondent argues that the Applicant has not identified any explanation that former counsel could have given to satisfy subsection 110(4) of the IRPA . The Respondent also relies on former counsel’s response, in which former counsel stated that the documents were available to the [NAME] and were resubmitted to [NAME] because the [NAME] allegedly ignored them. The Respondent further submits that the Applicant did not fully comply with the Federal Court’s protocol governing allegations against former counsel or another authorized representative. In particular, the Respondent argues that there is no evidence former counsel was provided with the order granting leave and setting the matter down for hearing. [ 21 ] The Federal Court’s Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings (the “Guidelines” ) outline the protocol where an applicant alleges professional incompetence, negligence, or other conduct on the part of his or her former legal counsel or other authorized representative as a ground for relief in an application for leave and judicial review under the IRPA . I need not decide whether any deficiency in following the Guidelines alone disposes of the allegation. Even assuming the Court may consider the allegation on the merits, the Applicant has not established ineffective assistance. [ 22 ] While the Applicant asserts that former counsel failed to explain why the family letters and affidavits met subsection 110(4) of the IRPA , the Applicant does not provide the Court with the missing explanation. He does not identify circumstances that prevented the evidence from being available or presented for the [NAME] hearing. [ 23 ] On the record before the Court, former counsel’s response points the other way. Former counsel states that the documents were available to the [NAME] and were resubmitted to [NAME] because the [NAME] allegedly ignored them. That response is difficult to reconcile with the Applicant’s present assertion that proper submissions would have shown the evidence was not reasonably available earlier or could not reasonably have been presented earlier. On this record, the Applicant has not provided the Court with evidence that would permit a finding that former counsel omitted a viable subsection 110(4) explanation. [ 24 ] The Applicant also has not established a reasonable probability of a different result or prejudice. [NAME] found that the evidence was not new within the meaning of subsection 110(4), because it repeated existing allegations, referred to general country conditions, and expressed family members’ fears rather than proving a new fact, a post-[NAME] event, or a previously unknown circumstance. Subsection 110(4) not only addressed when a document was created, but with whether the evidence is capable of proving a post-decision event or circumstance, or whether evidence about a pre-decision event was not reasonably available or could not reasonably have been presented before the [NAME] ( [NAME] at paras 8, 50, 63-64, 74). [NAME]’s approach was consistent with that principle. [ 25 ] I therefore find no breach of procedural fairness arising from former counsel’s conduct. B. Reasonableness (1) [NAME]’s Refusal to Admit the Proposed New Evidence [ 26 ] The Applicant submits that [NAME]’s assessment was unreasonable because it did not consider the excluded evidence. [NAME] considered the family evidence and explained why the content did not satisfy the statutory requirements in a way that was transparent, intelligible and justified ( [NAME] at paras 15, 95). [ 27 ] [NAME]’s treatment of the country condition evidence was also reasonable. Some documents were already in the NDP before [NAME] and other documents pre-dated the [NAME] decision, and the Applicant provided no adequate explanation why they were not reasonably available earlier. Further, the Applicant does not point to a specific country document that [NAME] misunderstood in a way that affected the result. [ 28 ] [NAME]’s refusal to hold an oral hearing followed from its refusal to admit new evidence. Under subsection 110(6) of the IRPA , an oral hearing may be held where the statutory conditions are met. Having admitted no new evidence, [NAME] reasonably decided the appeal on the written record. [ 29 ] Evidence that was not properly before [NAME] cannot be used to impugn the reasonableness of [NAME]’s merits analysis. The Applicant’s argument fails. (2) [NAME]’s IFA Analysis [ 30 ] The Applicant also argues that the Decision is unreasonable because [NAME] relied on an implausibility finding that [NAME] would not be motivated to locate him in the proposed [NAME]. This argument also fails. [NAME] rested its IFA finding on evidence about [NAME]’s geographic reach, structure, activities, and likely interest in the Applicant. [ 31 ] [NAME] relied on country evidence indicating that [NAME] is a highly localized, cell-based criminal organization centred in Mexico City, with lower-scale operations in some surrounding states. [NAME] noted that Mérida and Campeche are in Yucatán and Campeche, respectively, not in the states identified in the evidence as areas of [NAME] activity. [ 32 ] Moreover, [NAME] also considered whether the [NAME] might have influence in a location beyond its physical presence, which was a relevant inquiry ( [NAME] v Canada (Citizenship and Immigration) , 2022 FC 4 at para 15). [NAME] found insufficient evidence of [NAME] influence in the proposed [NAME]. That finding was open to it on the record. [ 33 ] [NAME] relied on the absence of recent [NAME] contact with the Applicant’s family, including the evidence that the Applicant’s brother had moved away from Mexico City without contact from the cartel. [NAME] treated the lack of contact as evidence relevant to the [NAME]’s ongoing interest in the Applicant. That reasoning is consistent with this Court’s jurisprudence wherein the absence of evidence of the agents of harm making efforts to contact family members may support a finding that the agent of harm lacks continuing interest to pursue the Applicant. [NAME] did not treat absence of contact as conclusive; [NAME] treated it as one factor. [ 34 ] [NAME] also considered the passage of time since the Applicant left Mexico in November 2022, while not treating passage of time alone as determinative. The passage of time as one factor may be relevant where there is insufficient objective evidence of continuing interest. [NAME] treated passage of time as one factor, in the absence of objective evidence of continuing interest, which was reasonable. [ 35 ] The Applicant’s disagreement is with [NAME]’s weighing of the evidence. However, the Court does not reweigh the evidence or substitute its own view and [NAME]’s path of reasoning is intelligible and supported by the record. [ 36 ] [NAME]’s first-prong IFA analysis was responsive to the central question: whether the Applicant faced a serious possibility of persecution or a section 97 risk in Mérida or Campeche. [NAME] explained why the evidence did not establish that [NAME] had the means or motivation to pursue the Applicant there. [ 37 ] [NAME]’s analysis under section 96 of the IRPA was also reasonable. The Applicant’s asserted risk arose from extortion and criminal retaliation. [NAME] found insufficient evidence linking that risk to race, religion, nationality, political opinion, or membership in a particular social group. [NAME] did not hold that victims of criminal organizations can never establish a Convention nexus. It held that this Applicant did not do so on this record. [ 38 ] On the second prong, [NAME] recognized that the threshold is high and that the Applicant bore the burden of showing that relocation would be unreasonable in his particular circumstances. The applicable test requires actual and concrete evidence of conditions that would jeopardize the claimant’s life or safety in the proposed IFA ( [NAME] v Canada (Minister of Citizenship and Immigration) , 2000 CanLII 16789 (FCA), [2001] 2 FC 164 at para 15). [ 39 ] [NAME] did not ignore the Applicant’s personal circumstances. It concluded that those circumstances did not make relocation unreasonable under the governing legal test. [NAME] considered the Applicant’s submissions about loss of support, disconnection from Mexico, and psychological vulnerability. [NAME] accepted that psychological condition may be relevant but found that the Applicant had not provided evidence meeting the high threshold or showing that suitable treatment would be unavailable in the proposed [NAME]. The Applicant does not identify a material personal circumstance that [NAME] failed to consider. [ 40 ] The Applicant also argued before [NAME] that state protection was the main issue. [NAME] found it unnecessary to address state protection after finding a viable IFA. Where a viable IFA is established, a separate state protection analysis is not necessary to dispose of the claim ( [NAME] v Canada (Citizenship and Immigration) , 2024 FC 485 at para 14). [ 41 ] [NAME] also addressed counsel’s passing reference to section 108 of the IRPA . [NAME] set out that subsection 108(4) of the IRPA concerns compelling reasons in exceptional circumstances and that the Applicant had not made the necessary submissions or established the necessary factual basis. The Applicant did not develop a coherent argument under that provision and [NAME] was not required to supplement an appeal and decide an argument that the Applicant did not meaningfully advance.

VII. Conclusion [ 42 ] The application for judicial review is dismissed. [ 43 ] The parties did not propose a question for certification, and none arises.

JUDGMENT in IMM-21046-24 THIS COURT’S

JUDGMENT is that : The application for judicial review is dismissed. There is no question for certification. "Michael D. Manson" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-21046-24 STYLE OF CAUSE: [NAME] v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING:

HELD BY VIDEOCONFERENCE DATE OF HEARING: May 12, 2026

REASONS AND

JUDGMENT: MANSON J. DATED: May 29, 2026 APPEARANCES : [NAME] For The Applicant [NAME] For The Respondent SOLICITORS OF RECORD : [NAME], Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent