Federal Court Grants Judicial Review for Refugee Claimants

Date: 20260220 Docket: IMM-19473-24 Citation: 2026 FC 240 Toronto, Ontario, February 20, 2026 PRESENT: Madam Justice Go BETWEEN: [NAME] Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

JUDGMENT AND

REASONS I. Overview [ 1 ] [NAME] [ “Principal Applicant” or “[NAME]” ] and her brother [NAME] [ “Associate Applicant” or “[NAME]” ] are citizens of Mexico [together “Applicants” ]. [ 2 ] The Applicants operated a family business and witnessed a murder in March of 2021 in front of their shop. They subsequently closed the business and re-opened it at a different location. A few months later, the [NAME] was extorted by a member of Jalisco New Generation Cartel [CJNG]. In August of 2023, the [NAME] allegedly experienced threats at her workplace and there was an attempted abduction. [ 3 ] The Applicants left for Canada in September of 2023 to seek refugee protection pursuant to sections 96 or 97 of the Immigration and Refugee Protection Act , SC 2001, c. 27 [ IRPA ]. [ 4 ] The Refugee Protection Division [RPD] held a hearing on May 30, 2024 and by a decision dated July 3, 2024, found the Applicants had a viable Internal Flight Alternative [IFA] in Mexico. As such, the RPD determined that the Applicants are neither Convention refugees nor persons in need of protection. [ 5 ] In a decision dated October 2, 2024 [Decision], the Refugee Appeal Division [RAD] dismissed the Applicants’ appeal and confirmed the RPD’s IFA finding. [NAME] rejected all the documents that the Applicants submitted as new evidence on the basis that they could have been reasonably available prior to the release of the RPD Decision. [ 6 ] The Applicants seek judicial review of the Decision. For the reasons set out below, I grant the application.

II. Analysis [ 7 ] The Applicants raise the following two issues with respect to the Decision : a) whether [NAME] erred by refusing to admit the new evidence, and b) whether [NAME] erred in its IFA assessment . [ 8 ] Applying the reasonableness standard of review, as per Canada (Minister of Citizenship and Immigration) v [NAME] , 2019 SCC 65, I find the determinative issue is [NAME]’s failure to fully engage with the Applicants’ submission and evidence before finding that they failed to meet the first step of the test for admitting new evidence under subsection 110(4) of the IRPA . [ 9 ] In support of their appeal to [NAME], the Applicants filed new evidence including an affidavit sworn by the [NAME] on August 22, 2024 [Affidavit]. The Affidavit attached, as exhibits, two letters, both dated August 7, 2024 from two witnesses confirming threats to the Applicants. The Applicants also submitted two news articles published in 2022 about drug cartels’ presence in their region. [ 10 ] One of the two letters was from a [NAME] and another from a [NAME] of the [NAME]. The landlord’s letter provided information regarding incidents that occurred in May and June 2024 about certain individuals attending at the Applicants’ home looking for the Applicants. The landlord also noted that they had not contacted or communicated with the [NAME] and did not inform her of these incidents earlier. The letter from the [NAME]’s [NAME] described an incident in mid-March 2024 where two men came to their office to look for the [NAME] – the same two men who had issued verbal threats to the [NAME] in August 2023. The author of the letter noted she left her employment at the end of March, and that the [NAME]’s mother contacted her a few days prior to the date of the letter. She also explained that the [NAME]’s mother had asked about her at her [NAME] workplace but the person in charge did not want to give her contact information to the [NAME]. [ 11 ] The Applicants argue that [NAME] unreasonably rejected the new evidence for the following reasons. [ 12 ] First, the Applicants assert that [NAME] erred in making no determination on the admissibility of the Affidavit and failed to provide its reasons for rejecting it. [NAME] v Canada (Citizenship and Immigration) , 2021 FC 1384 [ [NAME] ] at para 26 , the Applicants submit although certain portions of the Affidavit could have been construed as inadmissible, the entirety of the Affidavit was not inadmissible. The Affidavit contains information about how the Applicants obtained the letters and provides context to understand the other pieces of new evidence. [ 13 ] Second, the Applicants argue that [NAME] erroneously found that the letters could have been reasonably available prior to the rejection of the claim. The Applicants further submit that [NAME] failed to consider the fact that the letters contain information of events that transpired after the RPD hearing or could not have reasonably become available to the Applicants before the RPD determination. They point to paragraph 37 of their appeal memorandum to [NAME], and paragraph 18 of the Affidavit in support of the assertion they could not provide the two letters sooner as they became available to them after the hearing and after the RPD decision was rendered. The Applicants argue it was therefore unreasonable for [NAME] to conclude that the new evidence could have been reasonably available prior to the rejection of the claim: [NAME] v Canada (Citizenship and Immigration) , 2018 FC 939 at para 29. [ 14 ] At the hearing, the Applicants added that [NAME] engaged with only one of the two reasons provided by the Applicants as to why they could not have submitted the evidence sooner. The Applicants point to paragraph 11 of the Decision that states: The [Applicants] have provided that the proposed new documents, including two letters of support from a landlord and a [NAME], and a news article have been proffered to establish the agents of harms motivation to locate and harm them. The two letters are dated post-negative determination, and the news article from 2022. The [Applicants] argue that these documents should be admitted because they were unaware of the issue regarding the [IFA] until the time of the hearing and that they were unaware they could provide documents to address the issue. [Emphasis added.] [ 15 ] The Applicants submit that the above passage shows [NAME] only addressed one of the Applicants’ arguments for admitting new evidence, i.e., that they were unaware of the issue regarding the IFA at the time of the hearing. However, [NAME] did not address the second argument advanced by the Applicants, namely, that they could not have provided the documents sooner due to the timing in which they were able to obtain the new evidence. [ 16 ] I find some of the Applicants’ arguments persuasive. [ 17 ] In the Affidavit, the [NAME] provided the following two sets of explanations as to why she and her brother sought to submit new evidence: Prior to the hearing, they had never been informed about what an IFA was. During the hearing, their counsel’s submissions relating to IFA were not translated to them. At the end of the hearing, it was explained to them by the RPD that their matter had concluded and they were advised by the Member that she would provide them and counsel with her decision. As such, the Applicants were not aware they could provide additional documents in support of their claim and to address the issue of IFA. After the hearing, they thanked their lawyer who responded by saying “you are welcome,” but did not discuss anything regarding the hearing with the Applicants. The Applicants did not hear from the lawyer again until the RPD decision was rendered. The two new documents became available to them only after their refusal. The Applicants had previously asked their mother to find the two witnesses. However, she was not successful. The Applicants contacted their mother sometime after their claims were denied, and the letters also contained information that arose around the same time as their hearing. [ 18 ] [NAME] addressed the first set of explanation by noting that the Applicants were aware of the issue of IFA from the outset of the hearing. Counsel was given the opportunity to ask questions or make comments on the issues that were raised and noted they had none. [NAME] also noted that the Applicants were represented by counsel and their representative made submission on the issue of IFA. Further, no request was made to provide additional documentary evidence on the issue of IFA. Later in the Decision, [NAME] noted that the Applicants were asked questions via an interpreter about their ability to live safely in other regions of Mexico. Finally, [NAME] stated: “I also note that the [Applicants] are currently represented by new counsel and there has been no allegation against [NAME] counsel filed, as outlined in the Immigration and Refugee Board’s Practice Notice.” [ 19 ] With respect to the second set of explanations, the Decision noted briefly as follows: During the hearing, the [Applicants] were questioned regarding documentary evidence. They were asked if there was any evidence or documents that they tried to obtain in support of their refugee claim but could not get. The [[NAME]] noted that she had wanted to get video recordings of threats that were made at her workplace but was unable to do so. When asked if there was any additional documents or evidence missing, she stated “no.” [ 20 ] In making these findings, I agree with the Applicants that [NAME] failed to engage with the evidence submitted by the Applicants about why they were unable to present the evidence sooner given the timing of their receipt of the two letters, and the manner in which the Applicants came to obtain the letters in question. [ 21 ] Subsection 110(4) allows a claimant to provide evidence that arose after the rejection of their claim that was not reasonably available, or that the claimant could not have reasonably expected in the circumstances to have presented, at the time of the rejection. Just because the Applicants testified at the hearing that they were unable to obtain a certain type of evidence, this testimony should not preclude the Applicants from subsequently seeking to admit other new evidence. By refusing to admit the evidence based solely on the Applicants’ testimony at the RPD, [NAME] failed to apply subsection 110(4) properly. [ 22 ] While I find [NAME] distinguishable in that [NAME] in this case did not “wholly disregard” the Affidavit, I agree with the Applicants that [NAME] erred because it did not explain whether it found the Affidavit inadmissible in whole or in part. [ 23 ] The Respondent argues that the exclusion of new evidence is reasonable because the Applicants have not provided explanations as to why previously available evidence had not been provided to the RPD: [NAME] v Canada (Citizenship and Immigration) , 2025 FC 307 at para 23; [NAME] v Canada (Citizenship and Immigration) , 2019 FC 54 at paras 24-25; [NAME] v Canada (Immigration, Refugee and Citizenship) , 2025 FC 655 at para 20; [NAME] v Canada (Citizenship and Immigration) , 2019 FC 1191 at para 26. The Respondent points to [NAME]’s analysis at paragraphs 14-15 in the Decision, specifically where [NAME] noted the [NAME]’s assertion that her mother unsuccessfully obtained the letters in question contradicts the [NAME]’s testimony in the RPD hearing. The Respondent also goes through the content of the two letters and argues that there is no evidence that timely efforts were made to obtain the information in the letters. [ 24 ] I reject the Respondent’s argument for two reasons. First, I see nothing in paras 14-15 of the Decision to suggest that [NAME] refused to admit the new evidence based on contradictions of the [NAME]’s testimony. Second, I agree with the Applicants that the Respondent seeks to buttress the reasons for [NAME] to reject the new evidence, which is not permissible. [ 25 ] In conclusion, I find the Decision unreasonable. I need not consider the Applicants’ arguments with respect to [NAME]’s assessment of IFA as these arguments are based on the proposed new evidence, the admission of which will have to be re-assessed by a newly constituted panel.

III. Conclusion [ 26 ] The application for judicial review is granted. [ 27 ] There is no question to certify.

JUDGMENT in IMM-19473-24 THIS COURT’S

JUDGMENT is that : The application for judicial review is granted and the matter sent back for redetermination by a different panel. There is no question to certify. "[NAME]" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-19473-24 STYLE OF CAUSE: [NAME] v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: February 9, 2026

JUDGMENT AND

REASONS: GO J. DATED: february 20, 2026 APPEARANCES: [NAME] For The ApplicantS [NAME] For The Respondent SOLICITORS OF RECORD: [NAME], Ontario For The ApplicantS Attorney General of Canada Toronto, Ontario For The Respondent