I.P.P. v. OTHERS, 2018 FC 123

Date: 20180403 Docket: IMM-5135-15 Citation: 2018 FC 123 Ottawa, Ontario, April 3, 2018 PRESENT: The Honourable Mr. Justice Russell BETWEEN: I.P.P. AND OTHERS Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent PUBLIC JUDGMENT AND REASONS (Confidential Judgment and Reasons issued February 5, 2018) I.

INTRODUCTION [ 1 ] This is an application under s 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [Act or IRPA ], for judicial review of the decision of the Refugee Protection Division [RPD or Board] of the Immigration and Refugee Board of Canada [IRB], dated October 14, 2015 [Decision], which refused the Applicants’ applications to be deemed Convention refugees or persons in need of protection under ss 96 and 97 of the Act. In addition to ordinary administrative law remedies, the Applicants also request extraordinary remedies under s 24(1) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ], for alleged violations of their Charter rights. II. BACKGROUND [ 2 ] The Applicants are an extended family of twenty-four Mexican citizens. Over the course of 2007 and 2008, they arrived in Canada in separate groups and made claims for Convention refugee status. [ 3 ] The Applicants’ claims were all connected to an incident in 1992 when the principal Applicant, I.P.P., witnessed the murder of a neighbour and assisted police by identifying one of the murderers. I.P.P. later discovered that a particular gang [Gang] was responsible for the murder.

After the Gang’s leader was jailed for the crime, the Gang engaged in a fifteen-year vendetta against I.P.P. and his family. The Applicants allege that the Gang are " “ madrinas ” " for the Mexican judicial police. They say that madrinas are criminal gangs who serve as clandestine wings of police forces in Mexico. [ 4 ] The first group of Applicants arrived in Toronto on April 17, 2007 and a Port of Entry [POE] interview was conducted by Canadian immigration officials. The original group retained counsel and submitted their original Personal Information Forms [PIF] on May 11, 2007.

The first group became dissatisfied with their original counsel and retained new counsel in March of 2008. Over the course of 2008 and 2009, I.P.P., his mother, L.M.P.A., and his cousin, C.A.A.P., swore several new affidavits with their new counsel to amend the PIFs submitted by their first counsel. [ 5 ] Due to delays caused by the need to amend the Applicants’ PIFs, adjournments requested by the Applicants’ counsel, and the need to join different groups of claims, the Applicants’ first pre-hearing conference at the RPD did not begin until July 8, 2009.

Five pre- hearings were required before the Applicants began giving oral testimony on February 8, 2011. After four oral hearings in February, the RPD could not

schedule another hearing until October of 2011. Seven more hearings of oral testimony concluded with the Applicants’ final hearing on December 6, 2011. [ 6 ] During the 2011 intermission in hearings, the Applicants became aware of the RPD Member’s reported " “zero percent acceptance rate” " in refugee claims. Consequently, when hearings resumed on October 13, 2011, the Applicants made submissions to the Member requesting that he recuse himself on the basis of a reasonable apprehension of bias, delay, and because of the adverse impact that reports of his zero acceptance rate were having on the Applicants.

After taking the matter under reserve, the Member declined the Applicants’ request and refused to recuse himself at the next hearing on October 18, 2011. [ 7 ] The Applicants allege that, after the Member’s refusal to recuse himself, their stress levels resulting from the claim process dramatically increased. They say this stress manifested itself in several physical incidents during hearings in the fall of 2011.

Consequently, the Applicants made a renewed request for the Member to recuse himself at the October 27, 2011 hearing. [ 8 ] As part of their post-hearing submissions in January of 2012, the Applicants again requested that the Member recuse himself. As part of this request, they submitted a report prepared by Professor Sean Rehaag which described concerns with the Member’s methodology. Attached to the affidavit containing Professor Rehaag’s report were copies of every refugee decision rendered by the Member between 2008 and 2010. This amounted to over six hundred pages of exhibits.

The Applicants went on to make three more requests for the Member to recuse himself before the Decision was rendered on October 14, 2015.

[ 9 ] In November 2014, nearly three years after the conclusion of oral testimony, with the Decision still not rendered, the Applicants launched an Access to Information/Privacy [ATIP] request for all RPD documents related to the file. [ 10 ] The Applicants received notification of the Decision on October 27, 2015. The Member’s reasons, included with the notification, are dated October 14, 2015, which was the final day of the Member’s term of appointment with the RPD. III.

DECISION UNDER REVIEW [ 11 ] The Decision begins by acknowledging that the Applicants’ claim is for refugee protection under ss 96 and 97(1) of the Act . Ultimately, the Member concludes that the Applicants are not Convention refugees or persons in need of protection because he does not find their story credible. A. Allegations [ 12 ] The first

section of the Decision summarizes the basis of the Applicants’ claim " “as per the Original Personal Information Form” " and provides a brief procedural history of the claim’s progress. It recounts the Applicants’ allegation that their persecution all stems from I.P.P.’s having witnessed a murder committed by persons he later learned were members of the Gang, and his involvement in identifying the killer.

Persistent attacks that the Applicants attribute to the Gang led to the Applicants seeking refugee protection in Canada beginning in 2007. [ 13 ] The Decision notes that the first group of Applicants to arrive in Canada submitted a joint narrative under the supervision of a lawyer. The Applicants eventually changed counsel and complained that the original narrative was an inaccurate reflection of their story.

The Member notes that " “[v]arious ‘affidavits’ were filed to add extensive information to the narrative and change some of the things mentioned.” " The Member takes issue with the format of these amendments to the Applicants’ PIF narrative but acknowledges that these problems were rectified. The Member concludes this

section by stating that, over the course of 2007 and 2008, the total number of Applicants grew to twenty-six, but that three claimants later withdrew their claims. B. Recusal [ 14 ] The next

section of the Decision addresses the Applicants’ requests for the Member’s recusal, which are characterized as being made at " “various times” " on " “various bases.” " The Member states that all requests were overruled.

With regard to complaints about his demeanour, the Member is confident " “that with two counsels and [a Refugee Protection Officer (RPO)] constantly in the hearing room with me, none of them ever witnessed, in their opinion, any instances of inappropriate demeanour.” " [ 15 ] The Member proceeds to state his reasons for overruling the Applicants’ objection that a document he relied on was solicitor-client privileged and for overruling objections based on delay in the proceedings.

The document in question was introduced by the Applicants to establish that their original counsel had failed to include all the details of their story in their initial PIF. The Member points out that, like the PIF, the document lacks details, and determines that the Applicants waived solicitor-client privilege by proffering the document to the RPD. The Member concludes that delays in the proceeding were a function of the large number of Applicants. This made it difficult to

schedule hearings in the only Toronto hearing room large enough to accommodate the whole group.

The Member discounts any evidentiary problems arising from the delay, since RPD proceedings are digitally recorded and can be consulted " “if memory and written notes are not clear.” " [ 16 ] The Member returns to the question of recusal with the statement that " “[s]tatistics were also noted.” " He acknowledges media reports of his " “zero percent acceptance rate” " but explains that, when one considers the countries of origin involved in the decisions, his average acceptance rate did not place him on the list of RPD members who were highly off the average.

The Member points out that he is bound by the RPD Code of Conduct to decide cases on the facts and law before him and that " “each case turns on its own merits.” " He points out that statistics alone cannot determine whether a positive or negative result was warranted. Evidently the Applicants made other objections, but the Member says he " “will not repeat them.” " [ 17 ] The Member then offers a lengthy rebuttal of Professor Rehaag’s report.

He discounts the report’s value because Professor Rehaag’s language " “appears to be advocating for a certain viewpoint, rather than being dispassionate.” " Specific criticisms of the report include: Lack of mathematical explanation for how Professor Rehaag arrived at his statistical conclusions, including what variables were controlled for; Failure to analyze the decisions of other RPD members; Disagreement with characterising the Member’s credibility findings as being based on differences between oral testimony, the PIF, Port of Entry [POE] notes, and other documentary evidence, rather than a claimant’s explanation for those differences; Mischaracterization of the Member’s approach to psychological evidence; Ignoring the reasonable explanation for boilerplate passages and reasoning templates in the Member’s decisions; and Pointing out that mentioning the RPD Gender Guidelines in decisions is not a requirement, that it is more important that the Gender Guidelines be followed, and asserting that the Member’s questioning of L.M.P.A. did conform to the Gender Guidelines. [ 18 ] The Member proceeds to defend the record of his decisions in applications for judicial review in this Court.

He points out that only a small portion of his decisions have been granted leave, and that it is therefore incorrect to assume that those decisions are a

representative sample. While some claimants may have lacked the resources to proceed with an application for leave, the Member isconfident that Legal Aid Ontario can assist with cases that appear to be well founded.

In addition, the Member points out that a smallnumber of overturned decisions does not give rise to a reasonable apprehension of bias, particularly after Turoczi v Canada (Citizenshipand Immigration), 2012 FC 1423 at para 18 [Turoczi], where Justice Zinn accepted that the Member’s "“findings were straightforwardapplications of binding legal authorities and the relevant burden of proof…. [And that] there was very little likelihood that any memberwould have decided the claim differently.”" [19] The Member returns to the issue of delay to note that, in addition to the scale of the proceedings mentioned earlier, the time taken toreach a decision was impeded by the Applicants’ ATIP request.

The Member accepts that such a request was completely proper, butstates that "“the file was returned from [the] ATIP with nothing in order.”" The Member also reiterates the availability of a digitalrecording of the proceedings, "“so if there is something in doubt, the recording can be examined.”" [20] The Member also addresses the Applicants’ request for his recusal based on adverse psychological impact during the hearings. Heexplains that he gives little weight to the evidence of the Applicants’ family therapist, [omitted], because she is not licenced to diagnosepsychological conditions.

The Member points out that "“every precaution”" was taken to accommodate the Applicants, includingfrequent breaks, reverse questioning, support persons being allowed to be seated next to the Applicants, not questioning over specificdetails of L.M.P.A.’s sexual assault, and offering to use closed circuit television to monitor the proceedings. The Member acknowledgesthat I.P.P. became sick during the proceedings, but states that this was while his counsel was asking him questions. Therefore, theMember fails to see what could have been done differently. [21] The

section of the Decision dealing with recusal concludes by quoting the test for reasonable apprehension of bias espoused byJustice de Grandpré in Committee for Justice and Liberty v National Energy Board (1976), (SCC), [1978] 1 SCR 369 at394 [Committee for Justice]. The Member "“cannot see how this test has been satisfied.”" C.

Determination [22] The Member states that the Applicants have failed to satisfy the burden of establishing a serious possibility of persecution or theprobability that they would be subjected to a danger of torture, a risk to life, or a risk of cruel and unusual treatment or punishment if theywere returned to Mexico. He mentions that all of the evidence was considered in the context of the Gender Guidelines and he accepts that"“the circumstances which give rise to women’s fear of persecution are often unique to women.”" D.

Credibility [23] The Member accepts the Applicants’ identities as citizens of Mexico. [24] The Member’s credibility analysis starts by reiterating that he cannot find the Applicants credible. Of particular concern to theMember are discrepancies between the Applicants’ oral testimony, their PIFs, and other documentary evidence. The Member notes thatamendments to the PIFs state that the Gang is a madrina affiliated with a Mexican police force.

The Member accepts that confusion overthe particular level of police to which the Gang is connected is understandable, but highlights that I.P.P.’s initial statement toimmigration officials made no mention of the Gang’s connection to any police force. I.P.P.’s explanation that he had not known what tosay, that the immigration officers had been rude, and that he only recalled this after therapy are rejected by the Member.

The Memberstates that he understands that a claimant can be tired from travelling, and that perfect recollection is unlikely in a spontaneous interview,but emphasizes I.P.P.’s initial statement’s length. In these circumstances, the Member finds that the Gang’s connection to the police"“would have come to mind,”" and declines to accept I.P.P.’s explanation for the omission. [25] Mention of the Gang being madrinas for a police force was also absent from the Applicants’ original PIF narrative.

The Memberfinds I.P.P.’s explanation that it was their original counsel who omitted these details to be unsatisfactory because counsel was a licencedlawyer. The Member notes that, when faced with the Applicants’ complaint alleging improper service, their first lawyer disputed theallegations and asserted that he prepared the PIF properly.

The Member finds it telling that the Applicants "“did not push the matterfurther.”" Since several of the claimants relied on I.P.P.’s narrative, the Member "“cannot see how all would not remember this fairlybasic fact”" during its preparation, and finds that "“these omissions” "undermine the credibility of the Applicants. [26] The Member then deals with a "“subplot… not mentioned in the original narrative”" that was added in later PIF amendments. Theincident in question involved a revenge murder of a member of the Gang, committed by the family of the person whose murder I.P.P.had witnessed.

The Member rejects I.P.P.’s explanation that this was not clear to him at the time the original narrative was submitted.The Member reasons that the twenty-eight day deadline for submission of the PIF and narrative "“is almost the entire time allowed forcertain current refugee claims from start to finish.”" Considering the narrative’s length, and its inclusion of "“minute details… and othermundane things,”" the Member holds that "“[i]t makes no sense that the original PIF narrative does not mention the second murder.”"I.P.P.’s own testimony was that he did not testify against the Gang leader.

The Member therefore concludes that "“[the Gang leader] wasjailed by other means and it seem[s] strange that [the Gang] would spend all of these years seeking revenge against [I.P.P.].”" Thus, theMember found that it was more likely that the story of the second murder was "“concocted”" and its omission from the original PIFfurther undermined the Applicants’ credibility. [27] Other omissions from the original PIF that the Member finds undermine the Applicants’ credibility include: I.P.P. being drugged, abducted, beaten, and told at gunpoint that the Gang leader was still deciding what to do with him in 2000; An incident where someone with a gun chased I.P.P. after he stopped for gas; I.P.P.’s son’s face being smashed into the windshield of a car during a 2003 incident involving a vehicle; and The Gang leader’s call to I.P.P.’s father after the family’s vehicle was stolen in 2007 – the incident which ostensibly prompted

their flight to Canada. [ 28 ] The Member considers I.P.P.’s explanations for the omission of each of these incidents from the original PIF narrative in turn. I.P.P.’s explanations centre on further attacks being recalled during therapy, I.P.P. assuming that the incidents were described in his mother’s subsequent narrative, and his original lawyer’s omission of details from the first PIF narrative.

In each case, the Member " “do[es] not find these explanations satisfactory.” " [ 29 ] The Member also comments on " “discrepancies” " between I.P.P’s testimony and the amended PIF that undermine the Applicants’ credibility.

Again, in each case, the Member considers I.P.P.’s explanation for these discrepancies, but " “do[es] not find these explanations satisfactory.” " The discrepancies include: Precise details of the killers’ movements during the murder I.P.P. witnessed in 1992; Whether assailants hit I.P.P. while attacking him in 1999, or if he was merely slashed; The number of assailants who attacked I.P.P. after his marriage, whether a gun was used, and whether I.P.P. lost consciousness; and The scope of the 2006 attack and whether it was followed by police misconduct when I.P.P. attempted to report the crime. [ 30 ] The Member then proceeds to evaluate the testimony of I.P.P.’s family members.

In each case, the Member finds discrepancies and omissions that " “further undermine the [Applicants’] credibility.” " Again, none of the explanations the Applicants offer are found to be satisfactory.

The Member’s specific concerns include: A.A.P. not describing two 2002 attacks on him in either the handwritten statement he gave to immigration officials as part of his claim or in the original PIF; A.A.P’s failure to give the Gang leader’s name to an immigration official at the time he made his claim; L.M.P.A.’s failure in an interview with an immigration official to describe threats made against the family after 1992; The precise nature of alleged police involvement in L.M.P.A.’s rape; F.P.R.’s answer to an immigration official that there was no reason why he could not return to Mexico and his failure to disclose incidents that occurred after 1992; F.P.R.’s failure to mention being attacked on the highway in his handwritten statement to immigration officials; D.P.P.’s claim that she did not know about L.M.P.A.’s rape until after her arrival in Canada; R.P.P.’s not mentioning the kidnapping of her cousin in her original narrative filed in 2010; C.A.A.P.’s proffering a police report about his kidnapping that was dated 2006, rather than 2008, and admitting that in his first interview with an immigration officer he told the officer that he had only been kidnapped for one day because he did not want to contradict the report, even though it was incorrect; A.D.P.A.’s statement to immigration officials, both orally and in a handwritten note, that C.A.A.P. had been kidnapped and released on the same day, rather than after three days, and her admission that she also did not want to contradict the police report; and Why J.E.T.P. stated in his PIF that he feared the judicial police rather than the Gang.

" [ " " 31 " " ] " The Member also makes specific credibility findings in relation to C.A.A.P.’s testimony about his fear of persecution based on sexual orientation. The viability of La Zona Rosa, a gay district in Mexico City, is addressed. The Member takes issue with C.A.A.P.’s assertion that " “there are daily dead bodies and wounded people in La Zona Rosa.” " While accepting that " “there may be isolated incidents of gay bashing in Mexico,” " the Member finds it implausible that the carnage described by C.A.A.P. could go unreported.

Therefore, " “it was obvious [C.A.A.P.] was lying and to a somewhat fantastic degree.” " C.A.A.P.’s testimony that his uncle was gay, had died of AIDS, and had been attacked on account of his sexuality is also noted as being absent from his PIF. The Member reasons that if C.A.A.P. fears persecution on account of his sexual orientation, then the possibility that C.A.A.P.’s uncle faced attacks is something he would have expected to be mentioned in C.A.A.P.’s amended PIF.

" " [ 32 ] While considering the Applicants’ testimony, the Member specifically finds that the behaviour of D.P.P.’s husband exhibited a lack of subjective fear that undermined the Applicants’ credibility. D.P.P.’s husband arrived in Canada with her, but returned to Mexico and later travelled to the United States.

Considering that D.P.P.’s husband was allegedly aware that the Gang was hunting the family, the Member cannot accept that D.P.P.’s husband would return to Mexico or not " “simply cross a bridge from Buffalo” " to join his family’s refugee claim. [ 33 ] The Member also considers documents the Applicants submitted, but in each case either questions the documents’ veracity or concludes that the documents reinforce the Member’s negative credibility finding. A handwritten note the Applicants gave to their original counsel is noted to be similar to the PIF the lawyer produced.

Both omit connecting the Gang to the police. Since the Applicants’ argument was that their original PIF was deficient because the lawyer had ignored the document, the Member finds that this " “actually reinforces the negative credibility findings made with respect to the original PIF.” " A news report mentioning the Gang is criticized for the timing of its admission and for the detail that the Gang was using the Applicants’ abandoned house, an assertion the Applicants had never previously made.

The Member notes that a police report about an alleged highway attack on F.P.R. incorrectly refers to him as a journalist, states that he lives in the wrong city, and fails to mention the Gang. And a " “denunciation about recent

events in Mexico” " bears an official stamp on one otherwise blank page and lacks a file number. The Member concludes that the denunciation’s discrepancies call into question the authenticity of all documents submitted by the Applicants. [ 34 ] The Member summarizes his credibility conclusions as follows: [47] Given the serious discrepancies, omissions and outright lies with respect to major issues, I find that the claimants were generally lacking in credibility.

I simply do not believe, on a balance of probabilities, that any of the significant events that the claimants alleged happened to them actually happened. Given this finding and the irregularities with respect to several documents, I find on a balance of probabilities, that the documents presented by the claimants are forgeries. E. Internal Flight Alternative [ 35 ] The Member then determines that C.A.A.P., who also raised sexual orientation as a separate ground, has a viable Internal Flight Alternative [IFA] in the Federal District of Mexico City.

The Member cites the test for finding a viable IFA set out in Rasaratnam v Canada (Minister of Employment & Immigration) (1991), [1992] 1 FCR 706 (CA) [ Rasaratnam ].

Under the first prong of the test, the Member reasons that, since he does " “not believe any of the [Applicants’] evidence, to find in [C.A.A.P.’s] favour, [he] would have to find that all gay men in the Federal District face persecution.” " While acknowledging that isolated violence is possible, the Member is satisfied that the existence of a gay district in the Federal District, openly gay bars, and openly gay politicians precludes a serious possibility that C.A.A.P. will be persecuted there.

The second prong analysis relies on Canada (Minister of Citizenship and Immigration) v Ranganathan (2000), [2001] 2 FCR 164 (CA), to establish that the threshold for showing that relocation to the proposed IFA is unreasonable is high. The Member finds that as C.A.A.P. would " “essentially be moving closer to the centre of a city he already lived in,” " it is not unreasonable to expect him to avail himself of the IFA. F.

Conclusion [ 36 ] The Decision concludes by stating the Member’s determination that the Applicants’ claims under s 96 of the Act fail because the Member does not believe them and finds that there is an IFA available for C.A.A.P. The Member holds that the Applicants are not persons in need of protection because there is " “no other evidence that they would be subject to the harms delineated in

section 97 of the [Act].” " IV. ISSUES [ 37 ] The Applicants submit that the following are at issue in this application: 1 . Did delay or a reasonable apprehension of bias in the RPD proceedings violate the Applicants’ s 7 Charter rights? 2 . Did delay or a reasonable apprehension of bias in the RPD proceedings violate administrative law principles of natural justice? 3 . Is the RPD’s credibility assessment unreasonable? 4 . Is the RPD’s determination that a viable IFA exists for C.A.A.P. unreasonable? 5 . What is the appropriate remedy? V.

STANDARD OF REVIEW [ 38 ] The Supreme Court of Canada in Dunsmuir v New Brunswick , 2008 SCC 9 [ Dunsmuir ], held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review.

Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 at para 48 . [ 39 ] The issues the Applicants raise with respect to delay and reasonable apprehension of bias are questions of procedural fairness.

Questions of procedural fairness are reviewed under the correctness standard: Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 at para 43 [ Khosa ]. [ 40 ] The RPD’s credibility findings are findings of fact reviewable on a reasonableness standard: Fatih v Canada (Citizenship and Immigration) , 2012 FC 857 at para 62 [ Fatih ]. [ 41 ] The RPD’s application of the IFA test and finding that a viable IFA exists for C.A.A.P. is reviewable on a reasonableness standard: Ahmed v Canada (Citizenship and Immigration) , 2016 FC 828 at para 8 ; Estrada Lugo v Canada (Citizenship and Immigration) , 2010 FC 170 at paras 30-31 . [ 42 ] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with " “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” " See Dunsmuir , above, at para 47 , and Khosa , above, at para 59 .

Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the " “range of possible, acceptable outcomes which are defensible in respect of the facts and law.” "

VI. STATUTORY PROVISIONS [ 43 ] The following Charter provisions are relevant in this proceeding: " Rights and freedoms in Canada " " Droits et libertés au Canada " " " " 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. " " 1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés.

Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique. " " … " " … " " Life, liberty and security of person " " Vie, liberté et sécurité " " " " 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. " " 7.

Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale. " " … " " … " " Equality before and under law and equal protection and benefit of law " " Égalité devant la loi, égalité de bénéfice et protection égale de la loi " " " " 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. " " 15.

(1) La loi ne fait acception de personne et s’applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe, l’âge ou les déficiences mentales ou physiques. " " … " " … " " Enforcement of guaranteed rights and freedoms " " Recours en cas d’atteinte aux droits et libertés " " " " 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. " " 24.

(1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s’adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances.

" [ 44 ] The following provisions from the Act are relevant in this proceeding: " Convention refugee " " Définition de réfugié " " 96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, " " 96 A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : " " (

a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or " "

a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; " " (

b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. " "

b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. " " Person in need of protection " " Personne à protéger " " " " 97

(1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally " " 97

(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée : " " (

a) to a danger, believed on substantial grounds to exist, of torture within the meaning of

Article 1 of the Convention Against Torture; or " "

a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; "

" (

b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if " "

b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : " " (

i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, " " (

i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, " " (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, " " (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, " " (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and " " (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par " " (iv) the risk is not caused by the inability of that country to provide adequate health or medical care.

" " (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. " " … " " … " " Abandonment of proceeding " " Désistement " " 168

(1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so. " " 168

(1) Chacune des sections peut prononcer le désistement dans l’affaire dont elle est saisie si elle estime que l’intéressé omet de poursuivre l’affaire, notamment par défaut de comparution, de fournir les renseignements qu’elle peut requérir ou de donner suite à ses demandes de communication. " " … " " … " " Proceedings " " Fonctionnement " " " " 170 The Refugee Protection Division, in any proceeding before it, " " 170 Dans toute affaire dont elle est saisie, la

Section de la protection des réfugiés : " " … " " … " " (

b) must hold a hearing; " "

b) dispose de celle-ci par la tenue d’une audience; " " … " " … " " (

f) may, despite paragraph (b), allow a claim for refugee protection without a hearing, if the Minister has not notified the Division, within the period set out in the rules of the Board, of the Minister’s intention to intervene; " "

f) peut accueillir la demande d’asile sans qu’une audience soit tenue si le ministre ne lui a pas, dans le délai prévu par les règles, donné avis de son intention d’intervenir; " " … " " … " " (

i) may take notice of any facts that may be judicially noticed, any other generally recognized facts and any information or opinion that is within its specialized knowledge. " "

i) peut admettre d’office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation.

" [ 45 ] The following provisions of the Refugee Protection Division Rules , SOR/2012-256 [RPD Rules], are relevant in this application: " Specialized Knowledge " " Connaissances spécialisées " " " " Notice to parties " " Avis aux parties " " 22 Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person and, if the Minister is present at the hearing, the Minister, and give them an opportunity to " " 22 Avant d’utiliser des renseignements ou des opinions qui sont du ressort de sa spécialisation, la

Section en avise le demandeur d’asile ou la personne protégée et le ministre — si celui-ci est présent à l’audience — et leur donne la possibilité de faire ce qui suit : " " (

a) make representations on the reliability and use of the information or opinion; and " "

a) présenter des observations sur la fiabilité et l’utilisation du renseignement ou de l’opinion; " " (

b) provide evidence in support of their representations. " "

b) transmettre des éléments de preuve à l’appui de leurs observations. " " … " " … " " Opportunity to explain " " Possibilité de s’expliquer " " "

"65

(1) In determining whether a claim hasbeen abandoned under subsection 168(1) ofthe Act, the Division must give the claimantan opportunity to explain why the claimshould not be declared abandoned, " "65

(1) Lorsqu’elle détermine si elleprononce ou non le désistement d’unedemande d’asile aux termes du paragraphe168(1) de la Loi, la

Section donne audemandeur d’asile la possibilité d’expliquerpourquoi le désistement ne devrait pas êtreprononcé : ""(

a) immediately, if the claimant is present atthe proceeding and the Division considersthat it is fair to do so; or " "

a) sur-le-champ, dans le cas où ledemandeur d’asile est présent à la procédureet où la

Section juge qu’il est équitable de lefaire; ""(

b) in any other case, by way of a specialhearing. " "

b) au cours d’une audience spéciale, danstout autre cas. " [46] The following provisions of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act], are relevant in this application: "Powers of Federal Court " "Pouvoirs de la Cour fédérale ""18.1

(3) On an application for judicialreview, the Federal Court may " "18.1

(3) Sur présentation d’une demande decontrôle judiciaire, la Cour fédérale peut : ""(

a) order a federal board, commission orother tribunal to do any act or thing it hasunlawfully failed or refused to do or hasunreasonably delayed in doing; or " "

a) ordonner à l’office fédéral en caused’accomplir tout acte qu’il a illégalementomis ou refusé d’accomplir ou dont il aretardé l’exécution de manière déraisonnable;""(

b) declare invalid or unlawful, or quash, setaside or set aside and refer back fordetermination in accordance with suchdirections as it considers to be appropriate,prohibit or restrain, a decision, order, act orproceeding of a federal board, commission orother tribunal. " "

b) déclarer nul ou illégal, ou annuler, ouinfirmer et renvoyer pour jugementconformément aux instructions qu’elle estimeappropriées, ou prohiber ou encorerestreindre toute décision, ordonnance,procédure ou tout autre acte de l’officefédéral. " VII. ARGUMENT A. Applicants

(1) Section 7 Charter Arguments [47] The Applicants submit that their s 7 Charter rights are engaged by the Decision in two ways. [48] First, because the Decision’s denial of refugee protection imposes on them a risk of persecution, a risk to their lives, and a risk ofcruel and unusual treatment or torture if returned to Mexico. See Singh v Minister of Employment and Immigration, (SCC), [1985] 1 SCR 177 at 207 and 210 [Singh].

As legacy claimants whose claims were referred to the Immigration and RefugeeBoard before December 15, 2012, the Applicants do not enjoy a right of appeal to the Refugee Appeal Division [RAD]: BalancedRefugee Reform Act, SC 2010, c 8, s 36(1), as amended by the Protecting Canada’s Immigration System Act, SC 2012, c 17, s 68; OrderFixing August 15, 2012 as the Day on which Certain Sections of the Act Come into Force, SI/2012-65,

(2012) C Gaz II, 1917; EconomicAction Plan 2013 Act, No. 1, SC 2013, c 33, s 167. As Mexico is a designated country of origin under s 109.1 of the Act, the Applicantsare not entitled to a pre-removal risk assessment until three years after the Decision: Act, s 112(2)(c). The RPD’s Decision, therefore,determines whether the Applicants are subject to refoulement and engages interests protected by s 7 of the Charter. [49] Second, the Applicants argue that the circumstances of the refugee proceedings also engage their s 7 interests.

State-induced delayscaused the Applicants anxiety and psychological harm independent of the proceeding’s eventual outcome. This amounts to serious, state-imposed psychological stress: Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 at para 56 [Blencoe].

The scale ofthe delay led to impacts beyond the "“ordinary stresses and anxieties that a person of reasonable sensibility would suffer”" in refugeeproceedings, and are consistent with the threshold for engaging the Applicants’ security of the person as set out in New Brunswick(Minister of Health and Community Services) v G (J), (SCC), [1999] 3 SCR 46 at para 59.

Unlike Blencoe, theApplicants argue that the evidence in this case demonstrates that the psychological and physical harms they suffered were caused by theMember’s conduct of the hearings and inordinate delay in determination. [50] Having engaged s 7 Charter interests, the RPD’s proceedings must accord with the principles of fundamental justice. See R vBeare, (SCC), [1988] 2 SCR 387 at 401. The Supreme Court of Canada has observed that "“at a minimum the conceptof ‘fundamental justice’ as it appears in s. 7 of the Charter includes the notion of procedural fairness”": Singh, above, at 212.

In thecontext of an administrative proceeding, the content of the duty of fairness includes the right to have the matter determined by anunbiased decision-maker. See Pearlman v Manitoba Law Society Judicial Committee, (SCC), [1991] 2 SCR 869 at 883.The Applicants argue that fairness also demands that the proceeding be determined in a reasonable time. See Canada (Citizenship andImmigration) v Parekh, 2010 FC 692 at paras 25-28 [Parekh], citing Blencoe, above. (

a) Delay [51] To establish that state-induced delay amounts to an abuse of process which violates the duty of fairness, three factors must be

considered: the time taken compared to the inherent time requirements; the causes of the delay beyond the inherent time requirements ofthe matter; and the impact of the delay. See Parekh, above, at para 28, quoting Blencoe, above, at para 160. The Applicants say that, inthe present case, the delay of three years and ten months from the final oral hearing on December 6, 2011 until the Decision wasrendered on October 14, 2015 exceeded the inherent time requirements of the case, even accounting for its complexity and the volume ofevidence.

In Yadav v Canada (Citizenship and Immigration), 2010 FC 140 at paras 63-65, an immigration officer’s delay of ten and ahalf months between an interview and rendering the decision breached the duty of fairness. In the refugee context, a seven month delaywas considered "“inexplicable”" in Sasan v Canada (Minister of Citizenship and Immigration) (1998), (FC), 141 FTR158 at para 14 (TD). [52] Causes of delay in the present case include periods of unexplained inactivity that cannot be attributed to the Applicants, particularlywhen the Applicants’ attempts to obtain explanations for the delay went unanswered.

The Applicants dispute the Member’s assertion inthe Decision that their ATIP request created disorder in the file. They point out that the request came nearly three years after the finaloral hearing. The Member mentions scheduling difficulties caused by accommodating the group’s size, but the Applicants say that thereis no evidence that the RPD unsuccessfully attempted to

schedule hearings between February 24, 2011 and October 13, 2011. [53] Regarding the impact of the delay, the Applicants argue that they have suffered prejudice to their case because the delay calls intoquestion the Member’s ability to recall details of the Applicants’ testimony. Considering that the Member’s determination was primarilybased on credibility concerns, the Applicants say that the length of delay effectively denied them the benefits of an oral hearing. Courtsare "“well aware of the inherent weakness of written transcripts where questions of credibility are at stake”": Singh, above, at 214.

Theseproblems were exacerbated by the Member’s reliance on a mistranslated document that corroborated part of the Applicants’ story. TheApplicants document numerous mental and physical health impacts, financial impacts, and impacts on interpersonal relationships thatthey attribute to the delay. They assert that these harms surpass the ordinary stress and anxiety expected in the refugee claim process andare consistent with the impacts documented in Dr.

Lisa Andermann’s research: higher anxiety and depression resulting from long-termuncertainty; and exacerbated post-traumatic stress disorder symptoms resulting from chronic instability. [54] In response to the Respondent’s argument that the Federal Court of Appeal, in Hernandez v Canada (Minister of Employment &Immigration) (1993), 154 NR 231 at para 4 (FCA) [Hernandez], warned that unreasonable delay will rarely, if ever, be successfullyaccepted as a ground of review, the Applicants point out that the Court’s comments in Hernandez were based on the decision in Akthar vCanada (Minister of Employment & Immigration), [1991] 3 FCR 32 (CA) [Akthar].

In Akthar, the Court held that a claim that delay hasresulted in a Charter breach must "“be supported either by evidence or at the very least by some inference from the surroundingcircumstances that the claimant has in fact suffered prejudice or unfairness because of the delay.”" The need to produce proof, and notsimply rely on assertions, was followed in Rana v Canada (Minister of Citizenship and Immigration), 2005 FC 974 at para 20 [Rana].The Applicants say that their case is supported by evidence and that the case law cited by the Respondent does not apply in the presentcircumstances. (

b) Reasonable Apprehension of Bias [55] In addition to delay, the Applicants say that the principles of fundamental justice are violated where there is a reasonableapprehension of bias on the decision-maker’s part. The test for reasonable apprehension of bias is "“what would an informed person,viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likelythan not that [the decision-maker], whether consciously or unconsciously, would not decide fairly”": Committee for Justice, above, at394.

This is a fact-specific inquiry, with the facts "“addressed carefully in light of the entire context”": Wewaykum Indian Band vCanada, 2003 SCC 45 at para 77 [Wewaykum]. The Applicants say that a reasonable apprehension of bias in this case arises out ofmultiple factors considered together and that a reasonable person, thinking the matter through, would consider the Member predisposedto find the Applicants not credible and to refuse their claim. [56] The Applicants offer four factors that would lead the reasonable person to this conclusion: 1.

The Member took an adversarial approach to the Applicants’ evidence in seeking to impugn their credibility; 2. The Member’s adversarial approach is corroborated by the academic review of Professor Rehaag and the jurisprudence of thisCourt; 3. The procedure followed by the Member was irregular and punitive; and 4.

The Applicants experienced profound psychological and physical reactions to the Member’s conduct. [57] This Court has criticized RPD hearings where "“the member questioned the applicant relentlessly on countless details, evidentlywith the goal of making him ‘crack’”": Guermache v Canada (Minister of Citizenship and Immigration), 2004 FC 870 at para 10.Similarly, the questioning of claimants should not mimic "“cross-examination… worthy of a criminal trial”": De Leon v Canada(Minister of Citizenship and Immigration), [2000] FCJ No 852 (QL) at para 17 (TD).

The Applicants argue that the Member’s approachcontravened the presumption of truthfulness in oral testimony established in Maldonado v Canada (Minister of Employment &Immigration) (1979), [1980] 2 FCR 302 (CA), and was inconsistent with the IRB’s Gender Guidelines.

The Member’s active attempts todiscredit the Applicants extended to: threatening to summon their former counsel; relying on the note the Applicants provided to theiroriginal counsel to impugn the Applicants’ credibility; improperly relying on asserted specialized knowledge contrary to RPD Rule 22 todraw conclusions about the Applicants’ inability to locate media reports; and suggesting that the Applicants’ therapist may havecommitted an offence by offering observations concerning the Applicants’ mental health. [58] The Applicants submit that Professor Rehaag’s study establishes that the Member: did not grant any refugee claims from hisappointment in 2008 through to the end of 2010; granted fewer claims than other RPD members; and made no-credible-basis findings ata higher rate than other members.

See also Sean Rehaag, “‘I Simply do not Believe…’: A Case Study of Credibility Determinations inCanadian Refugee Adjudication” (2017) 38 Windsor Rev Legal Soc Issues 38. Professor Rehaag concludes that the most likelyexplanation is that the Member decides claims differently from other members. Professor Rehaag’s qualitative analysis of the Member’s

decisions identifies patterns that the Applicants say are present in the Decision under review here, and suggests that the Member takes an adversarial approach.

These patterns include: beginning and ending with a standard sentence concerning credibility; relying heavily on discrepancies between oral testimony, the PIF, and POE notes to impugn credibility; pointing to perceived omissions in the PIF and POE notes; dismissing explanations for perceived omissions on the basis that the PIF instructions are clear and that the PIF was otherwise quite detailed; finding that documents are forgeries; and disregarding psychological evidence because it is based on a story the Member did not find credible. [ 59 ] The Applicants submit that the Member’s adversarial approach can also be inferred from his reliance on grounds for finding the Applicants not credible that have been found unreasonable in other decisions of this Court. [ 60 ] The Applicants say that the Member’s procedural decisions in the present case also indicate an adversarial, or even punitive, approach to the Applicants’ claim.

The Member refused to recuse himself when presented with evidence that appearing before him prejudiced the Applicants by affecting their mental and physical health. This forced the Applicants to choose between abandoning their claim and jeopardizing their health. When L.M.P.A. became ill during one of the hearings and could not proceed, the Member scheduled a show-cause hearing to deal with her claim’s abandonment. Also, the Member scheduled a hearing for January 2015, well after the conclusion of oral hearings, but would not explain its purpose despite requests from counsel.

The hearing was cancelled the day before it was scheduled to take place and was never rescheduled. The Decision was issued on the final day of the Member’s term of appointment, the last day he could issue the Decision. [ 61 ] The Applicants argue that the Member failed to grant procedural accommodation allowed by the Gender Guidelines and the Vulnerable Persons Guidelines. Failure to meaningfully implement the Gender Guidelines is itself a reviewable error. See Jones v Canada (Minister of Citizenship and Immigration) , 2006 FC 405 at para 28 ; Yoon v Canada (Citizenship and Immigration) , 2010 FC 1017 at para 5 .

The Member did not recuse himself after being presented with expert evidence that his presence had put the Applicants’ health at risk. Further, the Member demonstrated gross insensitivity and persistent closemindedness when questioning L.M.P.A. The Decision reflects this when the Member finds that this was not a case of a woman " “reluctant to disclose… intimate details of the assault itself.” " [ 62 ] The Applicants argue that their psychological and physical reactions to the Member’s conduct are relevant to evaluating whether there is a reasonable apprehension of bias.

The Federal Court of Appeal has noted that " “when a reviewing court constructs the fictional reasonable person and determines how much information and understanding should be imputed to her for the purpose of the bias test, it should not altogether lose sight of the perspective of the unsuccessful refugee claimant” " : Ahumada v Canada (Minister of Citizenship and Immigration) , 2001 FCA 97 at para 24 . [ 63 ] The Applicants submit that the Respondent’s reliance on Chippewas of Mnjikaning First Nation v Chiefs of Ontario , 2010 ONCA 47 [ Chippewas ], and Martin v Sansome , 2014 ONCA 14 [ Martin ], does not further the argument, as both cases concern the approach of trial judges in a different context from the administrative determination of a refugee claim.

The Applicants accept that the refugee process is inquisitorial and allows RPD members to take an active role in the proceedings. See Kumar v Canada (Citizenship and Immigration) , 2009 FC 643 at para 28 , citing Canada (Citizenship and Immigration) v Thamotharem , 2007 FCA 198 at para 35 . The Applicants assert, however, that the Member’s behaviour in this case exceeded the RPD’s role in an inappropriate manner that contravened the Charter . [ 64 ] The Applicants also submit that Arthur v Canada (Attorney General) , 2001 FCA 223 [ Arthur ], is distinguishable.

In Arthur , the Court’s comment, at para 8, that an allegation of bias cannot rest " “on mere suspicion, pure conjecture, insinuations and mere impressions of an applicant or his counsel” " must be read in the context of the issue first being raised in oral argument on judicial review. Thus, the Court’s censure was directed at the cavalier manner in which the bias allegations were raised in that case. In contrast, the Applicants have raised the issue of reasonable apprehension of bias throughout the RPD proceedings and as grounds for judicial review in this application.

(2) Natural Justice [ 65 ] The Applicants submit, in the alternative to finding that the delay or reasonable apprehension of bias violate the Applicants’ s 7 Charter rights, that the delay and reasonable apprehension of bias also violate administrative law principles of natural justice and render the decision procedurally unfair.

(3) Credibility [ 66 ] The Applicants accept that judicial review of credibility findings is carried out under the reasonableness standard. See Fatih , above, at para 65 . However, determination of the reasonableness of the RPD’s credibility findings is based on the record that was before the decision-maker at the time. See Khatun v Canada (Citizenship and Immigration) , 2011 FC 3 at para 10 ; Kalra v Canada (Minister of Citizenship and Immigration) , 2003 FC 941 at para 15 ; Adil v Canada (Citizenship and Immigration) , 2010 FC 987 at para 34 .

The Member " “was obligated to disclose the full and true bases for his decision,” " which must be found in the Decision, " “viewed alongside the proper record of the case” " contained in the Certified Tribunal Record [CTR]: Stemijon Investments Ltd v Canada (Attorney General) , 2011 FCA 299 at paras 40-42 .

The Applicants say the record reveals that the Member arrived at his credibility findings in an improper and unreasonable manner because the Decision is " “over-vigilant in its microscopic examination of the evidence of persons who… testif[ied] through an interpreter and [told] tales of horror in whose objective reality there is reason to believe” " : Attakora v Canada (Minister of Employment & Immigration) , [1989] FCJ No 444 (QL) at para 9 (CA) [ Attakora ] . [ 67 ] The Applicants submit that the Member also inadequately considered the circumstances in which the POE notes were taken.

They point out that POE notes are not meant to provide the entire basis of a claim. See Argueta v Canada (Citizenship and Immigration) , 2011 FC 1146 at para 34 [ Argueta ]. Therefore, " “[a]dverse inferences should not necessarily be drawn when claimants simply add details consistent with the original statement” " : Argueta , above, at para 34 . This Court has held that it is an error for the RPD to impugn the credibility of a claimant " “on the sole ground that the information provided… at the POE interview lacks details” " : Cetinkaya v Canada (Citizenship and Immigration) , 2012 FC 8 at para 51 .

The Applicants say that, in the present case, omissions from the POE notes show

no true inconsistency as the central incident on which the claim is based is present in additional accounts the Applicants provided. In these circumstances, the Member should not have cited the POE notes to impugn the Applicants’ credibility. See Lubana v Canada (Minister of Citizenship and Immigration) , 2003 FCT 116 at paras 19-25 [ Lubana ].

Considering the harsh and stressful circumstances under which the POE interviews were conducted, the Applicants say that the Member’s failure to account for these circumstances when evaluating minor omissions in a narrative that spans more than a decade constitutes a reviewable error. [ 68 ] The Applicants further submit that the Member failed to adequately consider their explanations for amendments to the PIFs. They accept that amendments to a PIF that add details of central importance can be scrutinized by the RPD. See Zhang v Canada (Citizenship and Immigration) , 2007 FC 665 at para 6 .

Further, the act of amending a PIF " “should not be fatal to [the] claim” " : Li v Canada (Minister of Citizenship and Immigration) , 2006 FC 868 at para 29 . Valid reasons exist for amending a PIF and the duty of fairness requires consideration of the Applicants’ explanation for their PIF amendments: Erduran v Canada (Citizenship and Immigration) , 2011 FC 1299 at para 4 ; Touraji v Canada (Citizenship and Immigration) , 2011 FC 780 at paras 23-24 .

The Applicants’ explanation that their first counsel was responsible for deficiencies in the original PIFs was disregarded by the Member and he repeatedly used the Applicants’ amendments to impugn their credibility. The Member engaged in speculation to find that the Applicants’ complaint against their former counsel was " “not found to be proven” " and gave undue weight to the former counsel’s denial of misconduct. [ 69 ] The Applicants also submit that the Member’s credibility findings in relation to L.M.P.A.’s evidence about sexual assault are unreasonable.

They say that L.M.P.A. demonstrated characteristics consistent with the effects of sexual trauma described in Akter v Canada (Minister of Citizenship and Immigration) , 2006 FC 1205 at para 17 [ Akter ]. In such circumstances, it is an error to draw " “a hasty conclusion” " about credibility based on such behaviour: Akter , above, at para 18 . L.M.P.A.’s interactions with police immediately after she was assaulted are properly regarded as part of the same incident and questions about those interactions should be subject to the sensitivity prescribed in the Gender Guidelines.

The Member’s repeated questions about those interactions, his rejection of L.M.P.A.’s explanation for why she did not mention them, and his inferring a lack of credibility all result from the Member’s failure to consider how past trauma may affect demeanour.

The Applicants submit that by making a negative credibility inference, the Member was merely paying " “lip service to the Gender Guidelines” " : Lumaj v Canada (Citizenship and Immigration) , 2012 FC 763 at para 65 . [ 70 ] The Applicants also say the Member compounds this error when he relies on his own judgment about when, to whom, and in what detail L.M.P.A. would be comfortable disclosing her assault. When asserting that it was obvious that D.P.P. would have known about her mother’s rape, the Member ignores L.M.P.A.’s context as a Mexican woman accompanied by her husband and children.

The Applicants submit that it is not obvious that L.M.P.A. would have discussed her rape with her daughter. The Member’s finding that L.M.P.A. is not credible is unreasonable because it results from an implausibility determination that is not " “based on clear evidence, as well as a clear rationalization process supporting the Board’s inferences” " : Santos v Canada (Minister of Citizenship and Immigration) , 2004 FC 937 at para 15 . [ 71 ] The Applicants also submit that the Member fails to consider valid reasons for gaps in the documentary evidence they provided.

They acknowledge that credibility " “may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention” " : Adu v Canada (Minister of Employment and Immigration) , [1995] FCJ No 114 (QL) at para 1 (CA) [ Adu ] . Adu , however, dealt with the existence of a law.

In Bao v Canada (Citizenship and Immigration) , 2015 FC 606 at para 20 , Justice Mosley distinguished Adu on the basis that while " “[o]ne may expect that statutes and official decrees issued by a state will be published by that state’s organs… there is no reason to expect that an activist organization has the ability to report every single incident which falls within its area of interest.” " Similar logic should be applied to the Member’s confidence that the Gang was unlikely to have avoided media attention.

The Applicants argue that Mexico’s level of gang activity makes it unreasonable to expect that every gang will be reported on, and that the Gang’s police connection makes its absence from coverage more plausible. [ 72 ] The Applicants say that the Member makes a similar error when dismissing police reports containing certain incorrect details, or that fail to mention the Gang. Fear of reprisal makes it unsurprising that police officers would neglect to record the name of a police- affiliated gang.

In the context of state corruption and sloppy reporting, the omission of the Gang should not rebut the presumption of truthfulness that claimants are afforded. [ 73 ] Likewise, when the Member finds a lack of documentary evidence about the persecution of gay people in La Zona Rosa, and uses this to impugn the credibility of C.A.A.P., the Member does not consider whether much of the violence against gay men in Mexico is reported. [ 74 ] The Applicants say that the Member also fails to consider evidence concerning J.E.T.P.’s difficulties in testifying, and why M.T.M. and her family do not recall that the people who attacked them identified themselves as Gang members. [ 75 ] The Applicants submit that the Member further errs by failing to consider the psychological evidence when making credibility findings.

They cite Joseph v Canada (Citizenship and Immigration) , 2015 FC 393 at paras 36-40 , to establish that it " “it is an error to dismiss psychological evidence in reaching a credibility determination on the basis that [the Member] has already found the Applicants’ evidence not to be credible” " : Applicants’ Further Memorandum of Argument at para 52. The Applicants say that the Member makes precisely this error at para 47 of the Decision when he dismisses the psychological reports because he did not find the Applicants credible.

The Applicants suggest that the Member could have reached a different credibility determination had he considered the psychological reports relevant to his credibility finding.

(4) Internal Flight Alternative " [ " " 76 " " ] " The Applicants submit that the Decision makes a palpable and overriding error when applying the test for a viable IFA. They say that the correct test is to determine whether there is a serious possibility that the actual claimant, not persons like the claimant, faces a serious possibility of persecution in the part of the country where an IFA exists. In the Decision, the Member relies on his negative credibility finding with respect to C.A.A.P. to reject all of C.A.A.P.’s evidence about fear of persecution in the proposed IFA.

C.A.A.P.’s unique circumstances due to his family history are ignored and the Member reasons that " “[he] would have to find that all gay men in the Federal District face persecution.” " " "

[77] The Applicants also say that the Member’s IFA determination is unreasonable. They point to a paper on legal references from theIRB that lists the circumstances of persons similarly situated to the claimant as only one factor in evaluating the possibility ofpersecution in the potential IFA. See Immigration and Refugee Board of Canada, “Chapter 8 – Internal Flight Alternative”, (Ottawa:IRB, 24 November 2015) at 8.5.1, online: <http://www.irb-cisr.gc.ca>.

The Decision grounds its determination of an IFA on thecircumstances of persons similarly situated to C.A.A.P.. [78] In determining the availability of an IFA, the RPD "“must always examine the circumstances particular to the applicant”":Pathmakanthan v Canada (Minister of Employment & Immigration) (1993), 23 Imm LR (2d) 76 at para 5 (FCTD).

The Applicants saythe Decision ignores C.A.A.P.’s reasons for fearing to move to the proposed IFA based on the Federal District being less than one houraway from his previous residence, and the police discrimination he is likely to face if he asks for protection from the Gang. Theexistence of legal gay marriage and gay culture in the Federal District does not eliminate the danger from the Gang or suggest aninadequate police response.

(5) Remedy [79] The Applicants submit that this Court should grant an extraordinary remedy under s 24(1) of the Charter to redress the violation oftheir s 7 rights. Subsection 24(1) of the Charter offers broad remedial powers and a purposive

interpretation confers on courts wide scopeto craft remedies for Charter violations. See R v 974649 Ontario Inc, 2001 SCC 81 at para 18. See also Mills v The Queen, (SCC), [1986] 1 SCR 863 at 882. At least two things are required by a purposive approach to remedies: "“First, the purpose of theright being protected must be promoted: courts must craft responsive remedies. Second, the purpose of the remedies provision must bepromoted: courts must craft effective remedies”": Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at para 25[Doucet] [emphasis in original].

The Applicants say that such remedies may be appropriate even where they touch the functions of otherdecision-makers where an order of mandamus or certiorari fails to vindicate the claimant’s Charter rights. See e.g.

Doucet, above, atparas 60-67 and Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 at paras 146-153 [Insite]. [80] The Applicants say that a responsive and effective remedy in this case would be for this Court to order a directed verdict requiring adifferently constituted panel of the RPD to grant the Applicants status as Convention refugees or protected persons without the need tohold a hearing.

In the context of the Applicants’ decade-long attempt to gain refugee status, a declaration or order returning the matterfor redetermination would not effectively remedy the impacts that delay in the process has already had on their mental and physicalhealth. In fact, redetermination would add to the delay, exacerbating the circumstances that have brought the Applicants to this Court. [81] The Applicants point out that in Attakora, above, at para 14, the Federal Court of Appeal overturned the RPD’s credibility findingsand returned the matter with a directed verdict that the applicant is a Convention refugee.

See also Chaudri v Canada (Minister ofEmployment & Immigration) (1986), 69 NR 114 (FCA). Therefore, the remedy of a directed verdict has already been applied whereerroneous credibility findings are based on a member’s over-vigilant and microscopic examination of the evidence. [82] The Applicants submit that the law favours a directed verdict. They say this Court has power to make such an order under s 18.1(3)of the Federal Courts Act, and other statutes may be helpful to the Court in determining an appropriate remedy under s 24(1) of theCharter. See Doucet, above, at para 51.

The Court’s power under s 18.1(3) of the Federal Courts Act grants jurisdiction to direct adifferently constituted panel of the RPD to declare a claimant to be a Convention refugee. See Ali v Canada (Minister of Employment &Immigration), [1994] 3 FCR 73 at paras 4 and 16 (TD). Paragraph 170(

f) of IRPA contemplates the RPD granting a claim without ahearing in circumstances where the Minister has not intervened. [83] In Doucet and Insite, the Supreme Court of Canada held that declaratory relief was insufficient. In those circumstances, theimportance of a timely remedy and the barriers associated with beginning new proceedings justified the Court’s incursion into theexecutive sphere.

See also Canada (Public Safety and Emergency Preparedness) v LeBon, 2013 FCA 55 at paras 10-15; Wihksne vCanada (Attorney General), 2002 FCA 356 at para 10; Canada (Minister of Human Resources Development) v Tait, 2006 FCA 380 atpara 33.

In Pointon v British Columbia (Superintendent of Motor Vehicles), 2002 BCCA 516 at para 27, the British Columbia Court ofAppeal held that "“[t]he interests of the good administration of justice and of the reputation of the good administration of justice wouldnot be served by ordering a further review hearing”" as the appellant had already "“been through two review hearings, two JudicialReview Procedure Act petitions, and three full-scale arguments in court.”" [84] The Applicants say that substantial delay, and additional delay caused by remitting the matter for redetermination, hinders the goodadministration of justice.

A six-year delay in a pension determination, with the prospect of a further two-year delay if the matter wassimply remitted for redetermination, met the "“threshold of exceptionality”" that justified a directed verdict in D’Errico v Canada(Attorney General), 2014 FCA 95 at para 18. The Applicants have participated in multiple hearings, marked by procedural unfairness andunexplained delay, over an extended period of time.

Remitting the matter back to the RPD would "“undermine the goal of expedient andcost-efficient decision making, which often motivates the creation of specialized administrative tribunals in the first place”": Alberta(Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para 55. [85] The Applicants say that remitting the matter for redetermination would also subject them to further trauma and depart fromCanada’s obligation to provide a timely and fair assessment of refugee claims.

Given the effect of time on memory, being forced to recallevents even further removed from the present would impose on the Applicants an undue burden when establishing their credibility. [86] The Applicants initially sought Charter damages for the violation of their s 7 rights. An order of Justice Boswell, dated May 2,2017, denied the Applicants’ motion for a separate determination of Charter damages.

Justice Boswell held, however, that theApplicants were at liberty to initiate a motion to convert this application into an action and "“[i]n the event the application for judicialreview is not converted into an action… the Applicants may commence an action claiming damages in respect of any infringement oftheir Charter rights as found and determined by the judge who [hears] the application for judicial review.”" The Applicants did notconvert the application into an action and instead seek a declaration, pursuant to s 24(1) of the Charter, that their s 7 rights have beenviolated.

B. Respondent

(1) Section 7 Charter Arguments (

a) Delay [87] The Respondent submits that, given the complexities of the refugee application and the Applicants’ contributions to the delay, thetime taken was not inordinate or "“unacceptable to the point of being so oppressive as to taint the proceedings”": Blencoe, above, at para121. In Hernandez, above, at para 4, the Federal Court of Appeal warned that unreasonable delay "“cannot be perceived as a fertile basisfor setting aside decisions of tribunals.”" The rarity of the argument’s success has been commented on in the refugee context.

See Cihalv Canada (Minister of Citizenship and Immigration) (2000), 257 NR 62 at para 8 (FCA). [88] Whether a delay is inordinate depends on "“the nature of the case and its complexity, the facts and issues, the purpose and nature ofthe proceedings, [and] whether the respondent contributed to the delay or waived the delay”": Blencoe, above, at para 122. TheRespondent says that the contextual factors in this case justify the time taken.

These factors include the large number of Applicants,numerous adjournments, incomplete PIFs, new allegations, amended affidavits, the appointment of new counsel, translation issues at thehearings, and the schedules of all participants.

Despite this, the first pre-hearing was held less than one year after all the Applicantsclaimed refugee protection and the RPD held multiple pre-hearings and eleven hearings between July 8, 2009 and December 6, 2011.The nearly four years it took to issue the Decision is not unreasonable because the Decision was rendered eleven months after theApplicants submitted their final disclosure package and request for recusal.

During the entire period after the final hearing, ongoingcommunications between the Applicants’ counsel and the RPD demonstrate that the RPD continued to actively assess the file. [89] The Respondent notes that the Applicants never brought an application for mandamus to order the RPD to render a decision duringthe period of alleged delay. The mandamus remedy has been used by other refugee claimants. See e.g. Nyamoya v Canada (Citizenshipand Immigration), 2016 FC 642. [90] The Respondent says that the Court would have to ignore the evidence to find that the delay is unexplained or solely attributable tothe RPD.

Delays were caused by scheduling issues involving the availability of the Applicants, their counsel, the Member, the RPO, andthe only room that could accommodate the group’s size. The Applicants contributed to the delay through multiple requests foradjournment and by filing amended PIFs, supporting documents, and pre-hearing applications.

These factors establish that the hearingswere completed in a reasonable time. [91] In addition, the large amount of evidence the Applicants submitted after hearings concluded, post-hearing submissions, the ATIPrequest, a further motion for recusal, written submissions in response to figures provided as part of the recusal motion, and demandsregarding the Member’s statistics all contributed to the post-hearing delay.

In Blencoe, above, at para 125, the Supreme Court of Canadaheld that the British Columbia Council of Human Rights should not be held responsible for delay caused by the time taken to respond toquestions about the timeliness of the complaint and allegations of bad faith. The RPD cannot be faulted for the time taken to considerpost-hearing submissions and requests. [92] Regarding the impact of the delay, the Respondent submits that there is an insufficient causal connection between the RPD processand the alleged impacts on the Applicants’ mental and physical health.

Other stressors were present in the Applicants’ lives and theyhave provided insufficient evidence to support their causal assertions. [93] The Respondent also says that the delay between the last hearing and the date of the Decision did not impact the Member’s abilityto recall the Applicants’ testimony or prejudice their case.

Evidence the Applicants have introduced in the affidavits of Audrey Macklinand Peter Showler to show prejudice to their case should be given low weight because the affiants have drawn legal conclusions, do notprovide the factual foundation for their opinions, have failed to consider the facts of this case, and have relied on information on the pastpractices of the IRB not relevant to this case.

See R v Abbey, (SCC), [1982] 2 SCR 24 ("“[b]efore any weight can begiven to an expert’s opinion, the facts upon which the opinion is based must be found to exist”" at 46); AB Hassle v Canada (Minister ofNational Health and Welfare), 2002 FCA 421 at para 45. Regarding the inherent weakness of written transcripts, the Respondent saysthat Singh, above, is distinguishable as, unlike in Singh, the Applicants were provided with an oral hearing and a recording of the oralhearing is available.

While new National Documentation Packages [NDP] for Mexico were issued between the final hearing and theDecision, the Respondent points out that the Applicants have not shown how changes in the NDP could have impacted the Decision. (

b) Reasonable Apprehension of Bias [94] The Respondent agrees that the test for reasonable apprehension of bias is stated in Committee for Justice but says that this is meantto be a high threshold in light of the presumption of judicial impartiality. See R v S (RD), (SCC), [1997] 3 SCR 484 atpara 113; Chippewas, above, at para 243. The grounds for a reasonable apprehension of bias must be substantial and the test should notbe applied from the point of view of a "“very sensitive or scrupulous conscience”": Committee for Justice, above, at 395.

See alsoWewaykum, above, at para 76; Geza v Canada (Minister of Citizenship and Immigration), 2004 FC 1039 at paras 16-18 [Geza], rev’d2006 FCA 124 at paras 51 and 60.

An allegation of bias is serious and must be supported by evidence, not "“mere suspicion, pureconjecture or mere impressions of an applicant or counsel”": Arrachch v Canada (Minister of Citizenship and Immigration), 2006 FC999 at para 20 [Arrachch], citing Arthur, above. [95] The Respondent submits that the Decision demonstrates the Member’s thorough grasp of the evidence and jurisprudence, asituation comparable to that in Luzbet v Canada (Citizenship and Immigration), 2011 FC 923 at paras 9-13 [Luzbet].

The Decision makesit clear that the Member had taken an oath of office to decide cases based on the facts and law, and he refers to the IRB’s Code ofConduct for members. [96] The Respondent says that the Member’s questioning and demeanour are not evidence of bias. Some RPD hearings require a moreproactive approach than is customary. In this case, with a large number of claimants all relying on the same alleged incident in support of

their claim, it made sense for the Member to ask each of them about similar issues. The Member was obligated to test the Applicants’case and doing so does not demonstrate a reasonable apprehension of bias. See Luzbet, above, at para 13. [97] The Applicants have not identified any portions of the transcript where the Member’s questioning inhibited their ability to testify.Instead, the transcripts show the Applicants’ counsel handling the questioning of sensitive topics. For example, C.A.A.P. was questionedabout his sexual orientation by his own counsel, rather than the Member.

Similarly, a full review of the questioning of L.M.P.A. does notdemonstrate bias or closemindedness on the Member’s part. The Membe

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