2022 FC, 2022 FC 1049

Date: 20220718 Docket: IMM-4820-21 Citation: 2022 FC 1049 Ottawa, Ontario, July 18, 2022 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:ANTONIO GARCIA VELAZQUEZ LOHAN SEBASTIAN GARCIA GALLEGOS MARGARITA VANESSA GALLEGOS REZAApplicantsandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent REASONS AND JUDGMENT [1] Mr. Antonio Garcia Velazquez (the "“Principal Applicant”"), his wife Ms.

Margarita Vanessa Gallegos Reza and their minor childLohan Sebastian Garcia Gallegos (collectively, the "“Applicants”") seek judicial review of the decision of the Immigration and RefugeeBoard, Refugee Appeal Division (the "“RAD”"). In the decision, the RAD upheld the decision of the Immigration and Refugee Board,Refugee Protection Division (the "“RPD”") that the Applicants are not Convention refugees or persons in need of protection within themeaning of

section 96 and subsection 97(1), respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "“Act”"). [2] The Applicants are citizens of Mexico. They fear persecution from a drug cartel from Columbia. [3] Among other issues, the Applicants challenge the manner in which the RAD dealt with state protection.

They argue that the RADbreached procedural fairness by making a finding on state protection when their counsel was stopped midway through submissions onthe issue during the RPD hearing. [4] The Minister of Citizenship and Immigration (the "“Respondent”") submits that the RAD committed no breach of procedural fairnessand otherwise, committed no reviewable error. [5] The substance of the decision is reviewable on the standard of reasonableness, following the direction of the Supreme Court ofCanada in Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65 , [2019] 4 SCR 653. [6] In considering reasonableness, the Court is to ask if the decision under review "“bears the hallmarks of reasonableness —justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bearon that decision”"; see Vavilov, at paragraph 99. [7] The issue of procedural fairness is reviewable on the standard of correctness; see the decision in Canada (Minister of Citizenship andImmigration) v. Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339. [8] In my view, the issue of state protection is determinative.

Consideration of state protection in this case requires the Court to considerthe Applicants’ arguments about procedural fairness. [9] The RAD acknowledged that the RPD erred by making a finding on state protection after stopping the Applicants’ Counsel midwaythrough submissions on the subject.

However, the RAD committed the same error when it allowed the issue of state protection tocontribute to its conclusion. [10] I agree with the submissions of the Applicants that this interruption gave rise to a breach of procedural fairness. [11] In the result, the application for judicial review will be allowed, the decision will be set aside and the matter remitted to a new panelof the RAD for redetermination. There is no question for certification arising.

JUDGMENT in IMM-4820-21 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision is set aside and the matter remitted toa new panel of the Immigration and Refugee Board, Refugee Appeal Division for redetermination. There is no question for certificationarising. "E. Heneghan" Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4820-21 STYLE OF CAUSE: ANTONIO GARCIA VELAZQUEZ, LOHAN SEBASTIAN GARCIA GALLEGOS, MARGARITA VANESSA GALLEGOS REZA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE BETWEEN TORONTO, ONTARIO AND ST. JOHN’S, NEWFOUNDLAND AND LABRADOR DATE OF HEARING: JUNE 13, 2022 REASONS AND JUDGMENT: HENEGHAN J. DATED: JULY 18, 2022 APPEARANCES : D. Clifford Luyt FOR THE APPLICANTS Brad Bechard FOR THE RESPONDENT SOLICITORS OF RECORD : D. Clifford Luyt Barrister and Solicitor Toronto, Ontario FOR THE APPLICANTS Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT