In Refugee Credibility, the Federal Court granted Elder Estuardo Duarte Berganza’s application for judicial review after finding that the Refugee Appeal Division (RAD) misread a decision accepting his cousin’s refugee claim and failed to meaningfully address its corroborative value. The RAD decision was set aside and returned for redetermination by a different decision-maker.
Background to the refugee claim
Mr. Berganza, a citizen of Guatemala, sought review of the RAD’s dismissal of his appeal from a Refugee Protection Division (RPD) decision. The RPD had found that he was neither a Convention refugee nor a person in need of protection.
He alleged that he and his cousin campaigned in 2015 for the incumbent mayor of their hometown and publicly denounced an opposing candidate, EJ, for election fraud. He alleged that this activity led to threats and, after he returned to Guatemala, that five armed people abducted and physically and sexually assaulted him on July 24, 2020.
The RPD rejected the claim on credibility grounds. On appeal, the RAD admitted some new evidence, including the RPD decision that accepted the cousin’s refugee claim, but refused to admit a letter from the cousin. The RAD upheld the adverse credibility findings.
Court finds RAD misread cousin’s RPD decision
Justice Go held that the RAD made an unreasonable new credibility finding when it treated the cousin’s positive RPD decision as saying that the public denunciation of EJ occurred in 2019, rather than in 2015 as Mr. Berganza had testified.
The Court found that this was a misreading. The cousin’s RPD decision described two denunciations: one in 2015 and another in 2019. Because the RAD relied on its interpretation of that decision to further undermine Mr. Berganza’s credibility, the resulting finding was unreasonable.
The Minister argued that the concern could instead relate to Mr. Berganza’s failure to mention the 2019 denunciation. The Court rejected that characterization, finding that the RAD’s reasons questioned his allegation because of what it believed the cousin’s decision said, rather than identifying a specific omission concerning the 2019 event.
RAD did not engage with potentially corroborative evidence
The Court also found that the RAD failed to engage with the cousin’s positive RPD decision when deciding that it did not overcome the credibility concerns in Mr. Berganza’s case.
That decision included findings that, during the 2015 campaign, the cousin and Mr. Berganza began receiving death threats; that threats resumed after their 2019 public denunciation; and that Mr. Berganza was abducted, beaten and sexually assaulted on July 24, 2020 by agents of EJ.
Justice Go recognized that each claimant must establish their own claim and that claims are assessed on their own merits. However, the Court held that the RAD gave no reasons explaining why the RPD’s finding concerning the July 2020 incident did not overcome its credibility concerns. In light of the RAD’s misreading of the evidence, its failure to address that issue was unreasonable.
Outcome and practical significance
The parties agreed that the RAD’s assessment of the evidence was reviewable on the reasonableness standard. The Court considered whether the decision had the required hallmarks of justification, transparency and intelligibility, while noting that the applicant bore the burden of showing unreasonableness.
The application for judicial review was granted. The Federal Court set aside the RAD decision and referred the matter back for redetermination by a different decision-maker. No question was certified.
The decision concerns the RAD’s treatment of the specific evidence in this record. It illustrates the importance of accurately reading admitted evidence and explaining how potentially corroborative findings in a related refugee decision affect credibility concerns in the claimant’s own case.
Source: Federal Court Decisions