Prompt:
How does this Federal Court of Canada decision impact immigration procedures?

Serna Medina v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-01-20 Neutral citation 2023 FC 100 File numbers IMM-13524-22 Decision Content Date: 20230120 Docket: IMM-13524-22 Citation: 2023 FC 100 Ottawa, Ontario, January 20, 2023 PRESENT: Mr. Justice Norris BETWEEN: JOSE ANTONIO SERNA MEDINA ERIKA GARCIA ESPINO Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS I. OVERVIEW [1] The applicants are citizens of Mexico. They have been directed to report for removal from Canada on January 23, 2023. They have applied for an order staying the order for their removal pending the final determination of their application for leave and judicial review of a decision dated October 26, 2022, refusing their application for a Pre-Removal Risk Assessment (“PRRA”) under subsection 112(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”). [2] For the reasons that follow, I am satisfied that the applicants have met the three-part test for a stay. II. BACKGROUND [3] The applicants (a married couple) sought refugee protection in Canada on the basis of their fear of harm at the hands of a criminal cartel in Mexico. The Refugee Protection Division (“RPD”) of the Immigration and Refugee Board of Canada (“IRB”) found the applicants to be credible but rejected their claim on the basis that they had a viable Internal Flight Alternative (“IFA”) in Cancun, Manzanilla or Mexico City. The applicants appeared before the RPD without the assistance of counsel. Assisted by a social worker, they appealed the RPD’s decision to the Refugee Appeal Division (“RAD”) of the IRB. The RAD dismissed the appeal and upheld the RPD’s determination on the basis that the applicants have a viable IFA in Mexico City. [4] After receiving the negative RAD decision, the applicants retained a lawyer (“former counsel”). The lawyer applied for leave and judicial review of the RAD’s decision. Leave was refused in February 2022. [5] The applicants were offered the opportunity to submit an application for a PRRA. Their first application was submitted in January 2022. While it was refused in February 2022, for reasons that are not germane to the present motion, the applicants were offered the opportunity to re-submit their application. They did so in August 26, 2022. Throughout this process, the applicants continued to be assisted by their former counsel. [6] The PRRA application was refused again on October 26, 2022. The applicants have applied for leave and judicial review of this decision. They have also sought an order staying their removal from Canada until that application has been finally determined. III. ANALYSIS A. Preliminary Issue: The Late Filing of the Application for Leave [7] The applicants served and filed their notice of application for leave and judicial review of the negative PRRA decision out of time. They have included a request for an extension of time in their application for leave. While their request for an extension of time will not be determined until a decision is made on the leave application (see Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, rule 6(2)), having regard to all the circumstances, I am satisfied that it is appropriate to consider this motion for interlocutory relief on its merits. B. The Test for a Stay of Removal [8] The test for obtaining an interlocutory stay of a removal order is well-known. The applicants must demonstrate three things: (1) that the underlying application for judicial review raises a “serious question to be tried;” (2) that they will suffer irreparable harm if the stay is refused; and (3) that the balance of convenience (i.e. the assessment of which party would suffer greater harm from the granting or refusal of a stay pending a decision on the merits of the judicial review application) favours granting a stay: see Toth v Canada (Employment and Immigration) (1988), 86 NR 302, 6 Imm LR (2d) 123 (FCA); R v Canadian Broadcasting Corp, 2018 SCC 5, [2018] 1 SCR 196 at para 12; Manitoba (Attorney General) v Metropolitan Stores Ltd, [1987] 1 SCR 110; and RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 at 334. [9] The purpose of an interlocutory order like the one sought here is to ensure that the subject matter of the underlying litigation will be preserved so that effective relief will be available should the applicants be successful on their application for judicial review: see Google Inc v Equustek Solutions Inc, 2017 SCC 34 at para 24. A decision to grant or refuse such interlocutory relief is a discretionary one that must be made having regard to all the relevant circumstances: see Canadian Broadcasting Corp at para 27. As the Supreme Court stated in Google Inc, “The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific” (at para 25). [10] In the present case, under the first part of the test, the threshold for establishing a serious question to be tried is a low one. The applicants only need to show that the underlying application for judicial review is not frivolous or vexatious: RJR-MacDonald at 335 and 337; see also Gateway City Church v Canada (National Revenue), 2013 FCA 126 at para 11 and Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 25. [11] Under the second part of the test, “the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application” (RJR-MacDonald at 341). This is what is meant by describing the harm that must be established as “irreparable”. It concerns the nature of the harm rather than its magnitude (ibid.). Generally speaking, irreparable harm is harm that cannot be quantified in monetary terms or that could not be cured for some other reason even if it can be quantified (e.g. the other party is judgment-proof). [12] To establish irreparable harm, the moving party “must demonstrate in a detailed and concrete way that it will suffer real, definite, unavoidable harm – not hypothetical and speculative harm – that cannot be repaired later” (Janssen Inc v Abbvie Corporation, 2014 FCA 112 at para 24). Unsubstantiated assertions of harm will not suffice. The moving party must establish a “real probability” of irreparable harm (Glooscap Heritage Society at para 31). [13] The third part of the test requires an assessment of which party would suffer greater harm from the granting or refusal of a stay of the removal order pending a decision on the merits of the application for judicial review. To meet this part of the test, the applicants must establish that the harm they would suffer if the stay is refused is greater than the harm the respondent would suffer if the stay is granted. The harm found under the second part of the test is considered again at this stage, only now it is assessed in comparison with other interests that will be affected by the Court’s decision. This weighing exercise is neither scientific nor precise: see Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2020 FCA 181 at para 17. It is, however, at the heart of the determination of what is just and equitable in the particular circumstances of the case at hand. [14] Taking a step back, while each part of the test is important, and all three must be met, they are not discrete, watertight compartments. Each part focuses the Court on factors that inform its overall exercise of discretion in a particular case: Wasylynuk v Canada (Royal Mounted Police), 2020 FC 962 at para 135. The test should be applied in a holistic fashion where strengths with respect to one factor may overcome weaknesses with respect to another: see RJR-MacDonald at 339; Wasylynuk at para 135; Spencer v Canada (Attorney General), 2021 FC 361 at para 51; British Columbia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 at para 97 (rev’d on other grounds 2021 FCA 84); and Power Workers Union v Canada (Attorney General), 2022 FC 73 at para 56. See also Robert J Sharpe, “Interim Remedies and Constitutional Rights” (2019) 69 UTLJ (Supp 1) at 14. [15] Together, the three parts of the test help the Court to assess and assign what has been termed the risk of remedial injustice (see Sharpe, above). They guide the Court in answering the following question: Is it more just and equitable for the moving party or the responding party to bear the risk that the outcome of the underlying litigation will not accord with the outcome on the interlocutory motion? C. The Test Applied (1) Serious Question to be Tried [16] The applicants’ principal ground on which they seek judicial review of the negative PRRA decision is that they received ineffective assistance from their former counsel. They contend that they received ineffective assistance because their former counsel failed to advance their case fully and properly before the PRRA officer by omitting or overlooking material information that is relevant to their risk profile. They allege that, among other things, this failure appears to stem from a misunderstanding on the part of their former counsel about the nature of their risk profile and the sort of evidence that can be relied on in a PRRA application under paragraph 113(a) of the IRPA. [17] The framework within which an allegation of ineffective assistance of counsel is adjudicated in the context of an application for judicial review under the IRPA is well-established. First, as a prerequisite to having the issue considered by the reviewing Court, the applicants must establish that their former counsel has had a reasonable opportunity to respond to the allegations. Then, on the merits of the allegation, the applicants must establish that the conduct of their former counsel was negligent or incompetent (the performance component) and that this resulted in a miscarriage of justice (the prejudice component). See, among other cases, Hamdan v Canada (Immigration, Refugees and Citizenship), 2017 FC 643 at paras 36-38; Gombos v Canada (Citizenship and Immigration), 2017 FC 850 at para 17; Satkunanathan v Canada (Citizenship and Immigration), 2020 FC 470 at paras 33-39; and Nik v Canada (Citizenship and Immigration), 2022 FC 522 at paras 22-24. [18] For the purpose of the present motion, the applicants have alerted their former counsel to their concerns in a preliminary way and have solicited responses from him. Those responses have been included in the motion record, as has their complaint against their former counsel to the Law Society of Ontario. [19] With respect to the performance component, the applicants will have to discharge a two-fold burden. They will have to establish the facts on which they rely in impugning the conduct of their former counsel and they will have to establish that that conduct fell below the standard of reasonable professional assistance or judgment. See R v GDB, [2000] 1 SCR 520 at para 27. [20] The applicants will be required to meet a high threshold to establish the performance component of an allegation of ineffective assistance. This is because there is a strong presumption that their former counsel’s conduct fell within the wide range of professional assistance (GDB at para 27). The reviewing court will be careful to avoid second-guessing the tactical decisions of counsel; the wisdom of hindsight will have no place in the assessment (ibid.). Moreover, an expression of general dissatisfaction with counsel’s conduct is insufficient; the allegation of negligence or incompetence must be specific and clearly supported by the evidence (Shirwa v Canada (Minister of Employment and Immigration), [1994] 2 FC 51 (CA) at para 12). [21] With respect to the prejudice component, the applicants will have to establish that the misconduct of their former counsel resulted in a miscarriage of justice. Miscarriages of justice may take many forms in the context of ineffective assistance of counsel (GDB at para 28). This includes where former counsel’s conduct has compromised the reliability of the result of the earlier proceeding and where former counsel’s conduct has affected the fairness of the earlier proceeding (ibid.). [22] In the present case, the applicants allege that the conduct of their former counsel calls into question the reliability of the negative PRRA decision. To succeed on this basis, they will have to demonstrate a reasonable probability that, but for the incompetence of their former counsel, the result would have been different (Bisht v Canada (Public Safety and Emergency Preparedness), 2022 FC 1178 at para 24). A “reasonable probability” falls somewhere between a mere possibility and a likelihood: see Satkunanathan at para 96, adopting the test set out in R v Dunbar, 2003 BCCA 667 at para 26, which in turn adopted the test set out in R v Joanisse (1995), 102 CCC (3d) 35 (Ont. C.A.) at 64; see also Bi v Canada (Citizenship and Immigration), 2012 FC 293 at para 33 and Corpuz Ledda v Canada (Public Safety and Emergency Preparedness), 2012 FC 811 at para 15. [23] The respondent contends that the ineffective assistance of counsel ground does not meet the not frivolous or vexatious test because it is obvious that the applicants will not be able to satisfy either the performance or the prejudice components of the test. The Supreme Court of Canada has emphasized that, at this stage, the Court should conduct only a limited and preliminary assessment of the merits of the underlying application for leave and judicial review: see Metropolitan Stores at 127-28 and 130; and RJR-MacDonald at 337. On the basis of that assessment, I am satisfied that the allegation of ineffective assistance is neither frivolous nor vexatious. The applicants have therefore met the first part of the test. (2) Irreparable Harm [24] I am satisfied that removal of the applicants prior to the final determination of their application for leave and judicial review of the negative PRRA decision would render that application nugatory. This is sufficient to satisfy the second part of the test because of the apparent strength of the underlying application for judicial review. [25] If the applicants were to be removed to Mexico at this time, their application for leave and judicial review of the negative PRRA decision would become moot (Solis Perez v Canada (Citizenship and Immigration), 2009 FCA 171 at para 5). The potential mootness of an underlying application for judicial review does not necessarily constitute irreparable harm; whether this is so must be determined in the individual circumstances of the particular case at hand: see El Ouardi v Canada (Solicitor General), 2005 FCA 42 at para 8; and Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 at paras 34-38. [26] In the present case, I am satisfied that the ineffective assistance ground is clearly arguable. Even at this preliminary stage, the applicants make a strong argument with respect to both the performance and prejudice components of the test. This is a sufficient basis on which to find that the applicants would suffer irreparable harm if they were removed to Mexico before their application for leave and judicial review has been finally determined. This is because, if the applicants were to be removed at this time, they would lose the right to advance a clearly arguable ground challenging the negative PRRA decision. They would also, as a result, be deprived of the right to seek a meaningful and effective remedy in this Court with respect to an arguably flawed decision. Even if the Court were prepared to hear the judicial review application despite its mootness, and even if the applicants were able to persuade the Court that the decision was made in breach of the requirements of procedural fairness (because of the ineffective assistance of former counsel), setting aside the PRRA decision and remitting the matter to another officer for redetermination would be neither meaningful nor effective relief if the applicants are already in Mexico. This is a circumstance that could not be remedied in any other way. [27] Before leaving this part of the test, it is important to underscore that, in approaching the issue of irreparable harm as I have, the apparent strength of the underlying application for judicial review is a key consideration. In the present case, this is what has elevated the risk of remedial injustice from the speculative or merely hypothetical to a real probability. However, to be clear, the applicants were not required to establish – nor have I found – that their application for judicial review is likely to succeed. Rather, I have simply found that their application is sufficiently strong to give rise to a real risk of remedial injustice if they are required to leave Canada before it is finally determined. This is sufficient to satisfy the second part of the test. In contrast, grounds for review that satisfied the first part of the test because they were not frivolous or vexatious but which nevertheless did not appear strong may not support such a finding. Of course, in such a case, a party seeking a stay could still seek to satisfy the second part of the test by establishing other forms of irreparable harm. [28] In seeking a stay of their removal, the applicants also contend that they face another form of irreparable harm – namely, harm at the hands of their agents of persecution. Since I have found that the loss of the right to seek a meaningful and effective remedy in the underlying proceeding is sufficient to meet the second part of the test, it is not necessary to assess the other form of irreparable harm they advance. (3) Balance of Convenience [29] I am also satisfied that the balance of convenience favours the applicants. [30] In assessing the balance of convenience, in addition to the applicants’ interests, the public interest must be taken into account since this is a case involving the actions of a public authority (RJR-MacDonald at 350). The applicants are subject to valid and enforceable removal orders. These orders were made pursuant to statutory and regulatory authority. They are therefore presumed to have been made in the public interest. Further, under subsection 48(2) of the IRPA, a removal order “must be enforced as soon as possible” once it is enforceable. It is also presumed that an action that suspends the effect of a removal order (as would an interlocutory stay) would be detrimental to the public interest: see RJR-MacDonald at 346 and 348-49. Whether this is sufficient to defeat a request for an interlocutory stay in a given case will, of course, depend on all the circumstances of the case. This can also depend on how long the effect of the removal order would be suspended: see Canadian Council for Refugees at para 27. [31] Further, the impact on the public interest of suspending the effect of an act by a public authority is a matter of degree that varies depending on the subject matter of the litigation. As the Supreme Court noted in RJR-MacDonald, the impact on the public interest of exempting an individual litigant from the application of lawfully enacted legislation is less than suspending the effect of that legislation entirely. The impact of suspending temporarily the implementation of a removal order is arguably of an even lesser degree than this (although again the precise calibration of that impact will depend on the particular circumstances of the case). [32] In the present case, the only “inconvenience” to the respondent if the applicants are not removed now and their application for judicial review is subsequently dismissed is that their removal from Canada will have been delayed; it will not have been frustrated entirely. [33] On the other hand, the “inconvenience” to the applicants of losing the right to a meaningful remedy is significant and, as I have determined above, irreparable. The interest in ensuring that the applicants retain the right to a meaningful and effective remedy is not theirs alone. It is shared by the public and by the administration of justice. This is a factor that also tips the balance in favour of a stay. In the particular circumstances of this case, it outweighs the public interest in the immediate enforcement of the removal orders. [34] For these reasons, I am therefore satisfied that the balance of convenience favours the applicants. IV. CONCLUSION [35] Balancing all of the relevant considerations, I am satisfied that it is more just and equitable for the respondent to bear the risk that the outcome of the underlying litigation will not accord with the outcome on this motion than it would be for the applicants to bear that risk. A stay of removal is the only way to ensure that the subject matter of the underlying litigation is preserved so that effective relief will be available should the applicants be successful on their application for judicial review (cf. Google Inc at para 24). The countervailing considerations are insufficient to outweigh this fundamentally important consideration. [36] Accordingly, the motion is granted. The applicants shall not be removed from Canada prior to the final determination of the underlying application for leave and judicial review. [37] Finally, the style of cause names the respondent as the Minister of Immigration, Refugees and Citizenship. Although that is how the respondent is now commonly known, its name under statute remains the Minister of Citizenship and Immigration: Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, s 5(2) and IRPA, s 4(1). Accordingly, as part of this order, the style of cause is amended to name the respondent as the Minister of Citizenship and Immigration. ORDER IN IMM-13524-22 THIS COURT ORDERS that The motion for a stay of removal is granted. The applicants shall not be removed from Canada until their application for leave and judicial review of the PRRA decision dated October 26, 2022, is finally determined. The style of cause is amended to reflect the Minister of Citizenship and Immigration as the correct respondent. “John Norris” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-13524-22 STYLE OF CAUSE: JOSE ANTONIO SERNA MEDINA ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: January 20, 2023 ORDER AND REASONS: NORRIS J. DATED: January 20, 2023 APPEARANCES: Penny Yektaeian For The Applicants Sally Thomas For The Respondent SOLICITORS OF RECORD: Penny Yektaeian Barrister and Solicitor Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent

Response:
## Analysis of Court Decision: Medina v. Canada (Citizenship and Immigration)

### Key Issues
cial review raises a “serious question to be tried;” (2) that they will suffer irreparable harm if the stay is refused; and (3) that the balance of convenience (i.e. the assessment

### Standard of Review
Serna Medina v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2023-01-20 Neutral citation 2023 FC 100 File numbers IMM-13524-22 Decision Content Date: 20230120 Docket: IMM-13524-22 Citation: 2023 FC 100 Ottawa, Ontario, January 20, 2023 PRESENT: Mr. Justice Norris BETWEEN: JOSE ANTONIO SERNA MEDINA ERIKA GARCIA ESPINO Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent ORDER AND REASONS I. OVERVIEW [1] The applicants are citizens of Mexico. They have been directed to report for removal from Canada on January 23, 2023. They have applied for an order staying the order for their removal pending the final determination of their application for leave and judicial review of a decision dated October 26, 2022, refusing their application for a Pre-Removal Risk Assessment (“PRRA”) under subsection 112(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”). [2] For the reasons that follow, I am satisfied that the applicants have met the three-part test for a stay. II. BACKGROUND [3] The applicants (a married couple) sought refugee protection in Canada on the basis of their fear of harm at the hands of a criminal cartel in Mexico. The Refugee Protection Division (“RPD”) of the Immigration and Refugee Board of Canada (“IRB”) found the applicants to be credible but rejected their claim on the basis that they had a viable Internal Flight Alternative (“IFA”) in Cancun, Manzanilla or Mexico City. The applicants appeared before the RPD without the assistance of counsel. Assisted by a social worker, they appealed the RPD’s decision to the Refugee Appeal Division (“RAD”) of the IRB. The RAD dismissed the appeal and upheld the RPD’s determination on the basis that the applicants have a viable IFA in Mexico City. [4] After receiving the negative RAD decision, the applicants retained a lawyer (“former counsel”). The lawyer applied for leave and judicial review of the RAD’s decision. Leave was refused in February 2022. [5] The applicants were offered the opportunity to submit an application for a PRRA. Their first application was submitted in January 2022. While it was refused in February 2022, for reasons that are not germane to the present motion, the applicants were offered the opportunity to re-submit their application. They did so in August 26, 2022. Throughout this process, the applicants continued to be assisted by their former counsel. [6] The PRRA application was refused again on October 26, 2022. The applicants have applied for leave and judicial review of this decision. They have also sought an order staying their removal from Canada until that application has been finally determined. III. ANALYSIS A. Preliminary Issue: The Late Filing of the Application for Leave [7] The applicants served and filed their notice of application for leave and judicial review of the negative PRRA decision out of time. They have included a request for an extension of time in their application for leave. While their request for an extension of time will not be determined until a decision is made on the leave application (see Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, rule 6(2)), having regard to all the circumstances, I am satisfied that it is appropriate to consider this motion for interlocutory relief on its merits. B. The Test for a Stay of Removal [8] The test for obtaining an interlocutory stay of a removal order is well-known. The applicants must demonstrate three things: (1) that the underlying application for judicial review raises a “serious question to be tried;” (2) that they will suffer irreparable harm if the stay is refused; and (3) that the balance of convenience (i.e. the assessment of which party would suffer greater harm from the granting or refusal of a stay pending a decision on the merits of the judicial review application) favours granting a stay: see Toth v Canada (Employment and Immigration) (1988), 86 NR 302, 6 Imm LR (2d) 123 (FCA); R v Canadian Broadcasting Corp, 2018 SCC 5, [2018] 1 SCR 196 at para 12; Manitoba (Attorney General) v Metropolitan Stores Ltd, [1987] 1 SCR 110; and RJR-MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311 at 334. [9] The purpose of an interlocutory order like the one sought here is to ensure that the subject matter of the underlying litigation will be preserved so that effective relief will be available should the applicants be successful on their application for judicial review: see Google Inc v Equustek Solutions Inc, 2017 SCC 34 at para 24. A decision to grant or refuse such interlocutory relief is a discretionary one that must be made having regard to all the relevant circumstances: see Canadian Broadcasting Corp at para 27. As the Supreme Court stated in Google Inc, “The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific” (at para 25). [10] In the present case, under the first part of the test, the threshold for establishing a serious question to be tried is a low one. The applicants only need to show that the underlying application for judicial review is not frivolous or vexatious: RJR-MacDonald at 335 and 337; see also Gateway City Church v Canada (National Revenue), 2013 FCA 126 at para 11 and Glooscap Heritage Society v Canada (National Revenue), 2012 FCA 255 at para 25. [11] Under the second part of the test, “the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants’ own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application” (RJR-MacDonald at 341). This is what is meant by describing the harm that must be established as “irreparable”. It concerns the nature of the harm rather than its magnitude (ibid.). Generally speaking, irreparable harm is harm that cannot be quantified in monetary terms or that could not be cured for some other reason even if it can be quantified (e.g. the other party is judgment-proof). [12] To establish irreparable harm, the moving party “must demonstrate in a detailed and concrete way that it will suffer real, definite, unavoidable harm – not hypothetical and speculative harm – that cannot be repaired later” (Janssen Inc v Abbvie Corporation, 2014 FCA 112 at para 24). Unsubstantiated assertions of harm will not suffice. The moving party must establish a “real probability” of irreparable harm (Glooscap Heritage Society at para 31). [13] The third part of the test requires an assessment of which party would suffer greater harm from the granting or refusal of a stay of the removal order pending a decision on the merits of the application for judicial review. To meet this part of the test, the applicants must establish that the harm they would suffer if the stay is refused is greater than the harm the respondent would suffer if the stay is granted. The harm found under the second part of the test is considered again at this stage, only now it is assessed in comparison with other interests that will be affected by the Court’s decision. This weighing exercise is neither scientific nor precise: see Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2020 FCA 181 at para 17. It is, however, at the heart of the determination of what is just and equitable in the particular circumstances of the case at hand. [14] Taking a step back, while each part of the test is important, and all three must be met, they are not discrete, watertight compartments. Each part focuses the Court on factors that inform its overall exercise of discretion in a particular case: Wasylynuk v Canada (Royal Mounted Police), 2020 FC 962 at para 135. The test should be applied in a holistic fashion where strengths with respect to one factor may overcome weaknesses with respect to another: see RJR-MacDonald at 339; Wasylynuk at para 135; Spencer v Canada (Attorney General), 2021 FC 361 at para 51; British Columbia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 at para 97 (rev’d on other grounds 2021 FCA 84); and Power Workers Union v Canada (Attorney General), 2022 FC 73 at para 56. See also Robert J Sharpe, “Interim Remedies and Constitutional Rights” (2019) 69 UTLJ (Supp 1) at 14. [15] Together, the three parts of the test help the Court to assess and assign what has been termed the risk of remedial injustice (see Sharpe, above). They guide the Court in answering the following question: Is it more just and equitable for the moving party or the responding party to bear the risk that the outcome of the underlying litigation will not accord with the outcome on the interlocutory motion? C. The Test Applied (1) Serious Question to be Tried [16] The applicants’ principal ground on which they seek judicial review of the negative PRRA decision is that they received ineffective assistance from their former counsel. They contend that they received ineffective assistance because their former counsel failed to advance their case fully and properly before the PRRA officer by omitting or overlooking material information that is relevant to their risk profile. They allege that, among other things, this failure appears to stem from a misunderstanding on the part of their former counsel about the nature of their risk profile and the sort of evidence that can be relied on in a PRRA application under paragraph 113(a) of the IRPA. [17] The framework within which an allegation of ineffective assistance of counsel is adjudicated in the context of an application for judicial review under the IRPA is well-established. First, as a prerequisite to having the issue considered by the reviewing Court, the applicants must establish that their former counsel has had a reasonable opportunity to respond to the allegations. Then, on the merits of the allegation, the applicants must establish that the conduct of their former counsel was negligent or incompetent (the performance component) and that this resulted in a miscarriage of justice (the prejudice component). See, among other cases, Hamdan v Canada (Immigration, Refugees and Citizenship), 2017 FC 643 at paras 36-38; Gombos v Canada (Citizenship and Immigration), 2017 FC 850 at para 17; Satkunanathan v Canada (Citizenship and Immigration), 2020 FC 470 at paras 33-39; and Nik v Canada (Citizenship and Immigration), 2022 FC 522 at paras 22-24. [18] For the purpose of the present motion, the applicants have alerted their former counsel to their concerns in a preliminary way and have solicited responses from him. Those responses have been included in the motion record, as has their complaint against their former counsel to the Law Society of Ontario. [19] With respect to the performance component, the applicants will have to discharge a two-fold burden. They will have to establish the facts on which they rely in impugning the conduct of their former counsel and they will have to establish that that conduct fell below the standard of reasonable professional assistance or judgment. See R v GDB, [2000] 1 SCR 520 at para 27. [20] The applicants will be required to meet a high threshold to establish the performance component of an allegation of ineffective assistance. This is because there is a strong presumption that their former counsel’s conduct fell within the wide range of professional assistance (GDB at para 27). The reviewing court will be careful to avoid second-guessing the tactical decisions of counsel; the wisdom of hindsight will have no place in the assessment (ibid.). Moreover, an expression of general dissatisfaction with counsel’s conduct is insufficient; the allegation of negligence or incompetence must be specific and clearly supported by the evidence (Shirwa v Canada (Minister of Employment and Immigration), [1994] 2 FC 51 (CA) at para 12). [21] With respect to the prejudice component, the applicants will have to establish that the misconduct of their former counsel resulted in a miscarriage of justice. Miscarriages of justice may take many forms in the context of ineffective assistance of counsel (GDB at para 28). This includes where former counsel’s conduct has compromised the reliability of the result of the earlier proceeding and where former counsel’s conduct has affected the fairness of the earlier proceeding (ibid.). [22] In the present case, the applicants allege that the conduct of their former counsel calls into question the reliability of the negative PRRA decision. To succeed on this basis, they will have to demonstrate a reasonable probability that, but for the incompetence of their former counsel, the result would have been different (Bisht v Canada (Public Safety and Emergency Preparedness), 2022 FC 1178 at para 24). A “reasonable probability” falls somewhere between a mere possibility and a likelihood: see Satkunanathan at para 96, adopting the test set out in R v Dunbar, 2003 BCCA 667 at para 26, which in turn adopted the test set out in R v Joanisse (1995), 102 CCC (3d) 35 (Ont. C.A.) at 64; see also Bi v Canada (Citizenship and Immigration), 2012 FC 293 at para 33 and Corpuz Ledda v Canada (Public Safety and Emergency Preparedness), 2012 FC 811 at para 15. [23] The respondent contends that the ineffective assistance of counsel ground does not meet the not frivolous or vexatious test because it is obvious that the applicants will not be able to satisfy either the performance or the prejudice components of the test. The Supreme Court of Canada has emphasized that, at this stage, the Court should conduct only a limited and preliminary assessment of the merits of the underlying application for leave and judicial review: see Metropolitan Stores at 127-28 and 130; and RJR-MacDonald at 337. On the basis of that assessment, I am satisfied that the allegation of ineffective assistance is neither frivolous nor vexatious. The applicants have therefore met the first part of the test. (2) Irreparable Harm [24] I am satisfied that removal of the applicants prior to the final determination of their application for leave and judicial review of the negative PRRA decision would render that application nugatory. This is sufficient to satisfy the second part of the test because of the apparent strength of the underlying application for judicial review. [25] If the applicants were to be removed to Mexico at this time, their application for leave and judicial review of the negative PRRA decision would become moot (Solis Perez v Canada (Citizenship and Immigration), 2009 FCA 171 at para 5). The potential mootness of an underlying application for judicial review does not necessarily constitute irreparable harm; whether this is so must be determined in the individual circumstances of the particular case at hand: see El Ouardi v Canada (Solicitor General), 2005 FCA 42 at para 8; and Canada (Public Safety and Emergency Preparedness) v Shpati, 2011 FCA 286 at paras 34-38. [26] In the present case, I am satisfied that the ineffective assistance ground is clearly arguable. Even at this preliminary stage, the applicants make a strong argument with respect to both the performance and prejudice components of the test. This is a sufficient basis on which to find that the applicants would suffer irreparable harm if they were removed to Mexico before their application for leave and judicial review has been finally determined. This is because, if the applicants were to be removed at this time, they would lose the right to advance a clearly arguable ground challenging the negative PRRA decision. They would also, as a result, be deprived of the right to seek a meaningful and effective remedy in this Court with respect to an arguably flawed decision. Even if the Court were prepared to hear the judicial review application despite its mootness, and even if the applicants were able to persuade the Court that the decision was made in breach of the requirements of procedural fairness (because of the ineffective assistance of former counsel), setting aside the PRRA decision and remitting the matter to another officer for redetermination would be neither meaningful nor effective relief if the applicants are already in Mexico. This is a circumstance that could not be remedied in any other way. [27] Before leaving this part of the test, it is important to underscore that, in approaching the issue of irreparable harm as I have, the apparent strength of the underlying application for judicial review is a key consideration. In the present case, this is what has elevated the risk of remedial injustice from the speculative or merely hypothetical to a real probability. However, to be clear, the applicants were not required to establish – nor have I found – that their application for judicial review is likely to succeed. Rather, I have simply found that their application is sufficiently strong to give rise to a real risk of remedial injustice if they are required to leave Canada before it is finally determined. This is sufficient to satisfy the second part of the test. In contrast, grounds for review that satisfied the first part of the test because they were not frivolous or vexatious but which nevertheless did not appear strong may not support such a finding. Of course, in such a case, a party seeking a stay could still seek to satisfy the second part of the test by establishing other forms of irreparable harm. [28] In seeking a stay of their removal, the applicants also contend that they face another form of irreparable harm – namely, harm at the hands of their agents of persecution. Since I have found that the loss of the right to seek a meaningful and effective remedy in the underlying proceeding is sufficient to meet the second part of the test, it is not necessary to assess the other form of irreparable harm they advance. (3) Balance of Convenience [29] I am also satisfied that the balance of convenience favours the applicants. [30] In assessing the balance of convenience, in addition to the applicants’ interests, the public interest must be taken into account since this is a case involving the actions of a public authority (RJR-MacDonald at 350). The applicants are subject to valid and enforceable removal orders. These orders were made pursuant to statutory and regulatory authority. They are therefore presumed to have been made in the public interest. Further, under subsection 48(2) of the IRPA, a removal order “must be enforced as soon as possible” once it is enforceable. It is also presumed that an action that suspends the effect of a removal order (as would an interlocutory stay) would be detrimental to the public interest: see RJR-MacDonald at 346 and 348-49. Whether this is sufficient to defeat a request for an interlocutory stay in a given case will, of course, depend on all the circumstances of the case. This can also depend on how long the effect of the removal order would be suspended: see Canadian Council for Refugees at para 27. [31] Further, the impact on the public interest of suspending the effect of an act by a public authority is a matter of degree that varies depending on the subject matter of the litigation. As the Supreme Court noted in RJR-MacDonald, the impact on the public interest of exempting an individual litigant from the application of lawfully enacted legislation is less than suspending the effect of that legislation entirely. The impact of suspending temporarily the implementation of a removal order is arguably of an even lesser degree than this (although again the precise calibration of that impact will depend on the particular circumstances of the case). [32] In the present case, the only “inconvenience” to the respondent if the applicants are not removed now and their application for judicial review is subsequently dismissed is that their removal from Canada will have been delayed; it will not have been frustrated entirely. [33] On the other hand, the “inconvenience” to the applicants of losing the right to a meaningful remedy is significant and, as I have determined above, irreparable. The interest in ensuring that the applicants retain the right to a meaningful and effective remedy is not theirs alone. It is shared by the public and by the administration of justice. This is a factor that also tips the balance in favour of a stay. In the particular circumstances of this case, it outweighs the public interest in the immediate enforcement of the removal orders. [34] For these reasons, I am therefore satisfied that the balance of convenience favours the applicants. IV. CONCLUSION [35] Balancing all of the relevant considerations, I am satisfied that it is more just and equitable for the respondent to bear the risk that the outcome of the underlying litigation will not accord with the outcome on this motion than it would be for the applicants to bear that risk. A stay of removal is the only way to ensure that the subject matter of the underlying litigation is preserved so that effective relief will be available should the applicants be successful on their application for judicial review (cf. Google Inc at para 24). The countervailing considerations are insufficient to outweigh this fundamentally important consideration. [36] Accordingly, the motion is granted. The applicants shall not be removed from Canada prior to the final determination of the underlying application for leave and judicial review. [37] Finally, the style of cause names the respondent as the Minister of Immigration, Refugees and Citizenship. Although that is how the respondent is now commonly known, its name under statute remains the Minister of Citizenship and Immigration: Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, s 5(2) and IRPA, s 4(1). Accordingly, as part of this order, the style of cause is amended to name the respondent as the Minister of Citizenship and Immigration. ORDER IN IMM-13524-22 THIS COURT ORDERS that The motion for a stay of removal is granted. The applicants shall not be removed from Canada until their application for leave and judicial review of the PRRA decision dated October 26, 2022, is finally determined. The style of cause is amended to reflect the Minister of Citizenship and Immigration as the correct respondent. “John Norris” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-13524-22 STYLE OF CAUSE: JOSE ANTONIO SERNA MEDINA ET AL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY VIDEOCONFERENCE DATE OF HEARING: January 20, 2023 ORDER AND REASONS: NORRIS J. DATED: January 20, 2023 APPEARANCES: Penny Yektaeian For The Applicants Sally Thomas For The Respondent SOLICITORS OF RECORD: Penny Yektaeian Barrister and Solicitor Toronto, Ontario For The Applicants Attorney General of Canada Toronto, Ontario For The Respondent

### Legal Analysis
The court's analysis focuses on: been finally determined. III. ANALYSIS A. Preliminary Issue: The Late Filing of the Application for Leave [7] The applicants served and filed their notice of application for leave and judicial review of the negative PRRA decision out of time. They have included a request for an extension of time in their application for leave. W

### Precedential Value
This Federal Court decision has persuasive value for similar cases before the court and provides guidance to the Immigration and Refugee Board on the proper interpretation of law and procedural requirements. While not binding on other Federal Court judges, it establishes a precedent that will often be followed for consistency.


Prompt:
How does this Refugee Appeal Division decision from the Immigration and Refugee Board of Canada impact refugee claimants?

RAD File / Dossier de la SAR : MC1-05698 MC1-05699 / MC1-05700 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal [REDACTED][REDACTED]XXXX Personnes en cause Date of decision January 10, 2022 Date de la décision Panel Laura Ko Tribunal Counsel for the persons who are the subject of the appeal Gaurav Sharma Conseil des personnes en cause Designated representative XXXX XXXXfor XXXXXXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] These are my reasons for dismissing the appeals of XXXX XXXX (Principal Appellant), XXXX XXXX and XXXX (Associate Appellants). The Principal Appellant acts as designated representative for the minor Associate Appellant, XXXX. [2] The Appellants are citizens of India. They fear harm in India at the hands of the Punjab and Delhi police, as well as at the hands of certain individuals suspected by police to be involved in criminal activity. The Principal Appellant refers to these individuals as "smugglers" or "militants". For consistency, these individuals have been referred to as "smugglers" throughout these reasons. [3] The Refugee Protection Division (RPD) rejected the Appellants' refugee claims for the following main reasons: a. The RPD found that there were inconsistencies and omissions in the Appellants' evidence that raised questions about some of their allegations. It found that the Appellants did not establish, on a balance of probabilities, that the Punjab police or the Delhi police are looking for the Principal Appellant; b. The RPD found that it was speculative that the smugglers are looking for him in India; and c. The RPD found that the Appellants have a viable internal flight alternative (IFA) in New Delhi, Mumbai, Kolkata and Bangalore. [4] The Appellants have appealed the RPD Decision and asks the Refugee Appeal Division (RAD) to grant the appeal and make all other orders judged appropriate. [5] On appeal, the Appellants: a. Attempt to rectify the issues of credibility with explanations and new evidence; b. Argue that the police and smugglers have the means and motivation to locate them anywhere in India; c. Argue that it is not reasonable for them to relocate to any of the IFA locations; and d. Argue that for the benefit of the minor Associate Appellant, the RPD decision should be overturned. DECISION [6] I dismiss the appeal. I find that the RPD correctly concluded that the Appellants have a viable IFA in Mumbai, Kolkata, and Bangalore. The RPD was correct in finding that the Appellants are neither Convention1 refugees nor persons in need of protection. BACKGROUND [7] According to the Basis of Claim (BOC) form narrative of the Principal Appellant and the testimony of the adult Appellants before the RPD, the Appellants' fear arose in April 2018 after the Principal Appellant, who owned and operated a taxi service, drove two men from Ludhiana towards Delhi. The taxi was stopped at a police roadblock outside Karnal, Haryana, where the two passengers exited the taxi and ran away, leaving behind two bags containing arms, ammunition and drugs in the taxi. The Appellants allege that the police wrongly accused the Principal Appellant of being involved in a militant and/or criminal group, having been left responsible for the bags of illegal items in his taxi. [8] The Appellants allege that both adult Appellants were detained and tortured by the Punjab police in Ludhiana in relation to these accusations. They were released after the payment of bribes and assurances from the Municipal Councillor in their area and the Principal Appellant's father that they would bring the Appellants to the police upon request. The Appellants stayed with the Principal Appellant's aunt in Delhi and then other locations within Delhi before leaving for Canada in XXXX 2018. NEW EVIDENCE AND ORAL HEARING [9] According to the law,2 I can only accept evidence that: (i) arose after the RPD decision; (ii) was not reasonably available at the time of the decision; or (iii) that the Appellants could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [10] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.3 [11] The Appellants have submitted two pieces of evidence for consideration as new evidence pursuant to section 110(4) of the Immigration and Refugee Protection Act (IRPA): * Document A: A three-page affidavit from the father of the Principal Appellant, dated XXXX XXXX, 2021; and * Document B: A one-page document containing a picture of the Principal Appellant's work identification card and business card for XXXX XXXX, [REDACTED] XXXX Ludhiana. [12] I find that a portion of the affidavit from the father of the Principal Appellant constitutes new evidence while other portions do not. I find that the document regarding the Principal Appellant's employment does not constitute new evidence. My reasons are as follows. Document A - accepted in part [13] The affidavit of the father post-dates the RPD Decision of July 23, 2021. However, portions of the affidavit pertain to facts that pre-date the RPD Decision, including statements regarding how the Principal Appellant first came to the attention of police, how the father learned of the Principal Appellant's arrest, steps taken to get the Principal Appellant and the adult Associate Appellant released from police custody, the subsequent visits by police to the home of the parents and other relatives, and the fact that the Municipal Councillor took the responsibility to produce the adult Appellants to police as soon as they return to India. Evidence regarding these events was already before the RPD, in the form of testimony from the Principal Appellant. [14] I find that the evidence in the affidavit of the Principal Appellant's father regarding these events did not arise after the RPD Hearing, as the Principal Appellant testified to these events himself at the RPD Hearing. I also find that the Appellants have not established that the information from the father was not reasonably available at the time of the decision, or that the Appellants could not reasonably have been expected to present the evidence to the RPD before the decision. [15] Most of the facts that relate to these events were accepted by the RPD. However, with respect to the evidence that there were visits by police to the home of the parents and other relatives, the RPD found the Principal Appellant's testimony not to be credible. At the hearing, the RPD raised its concern with the fact that the visits from police were not documented in the Appellants' BOC form narrative and stated that the father's evidence regarding police visits was important.4 The RPD noted that the Appellants were able to get statements from other individuals. [16] At the conclusion of the hearing, the RPD reserved its decision. The Appellants had five weeks from the conclusion of the RPD Hearing until the decision was rendered, during which time they could have requested the opportunity to submit further evidence but did not do so. [17] On appeal, the Appellants state that they are now submitting an affidavit from the Principal Appellant's father "certifying about the police visits."5 However, the Appellants do not explain in their Appellants' Memorandum why this information was not presented to the RPD. A RAD appeal is not a second chance to submit evidence to answer weaknesses identified by the RPD and supplement a deficient record. Refugee claimants are expected to put their best foot forward at the RPD stage.6 [18] I find that the Appellants reasonably could have requested an affidavit from the Principal Appellant's father before the RPD made its decision on the refugee claims: the Appellants were able to get written statements from other family members; they were in regular telephone contact with the father and had been informed by him of the visits with police; and they were advised of the RPD's position that this was evidence that was important to the RPD's consideration of the refugee claims. [19] I find that this portion of the affidavit did not arise after the RPD Decision, was reasonably available and could reasonably have been expected to be presented to the RPD. It does not meet the criteria under section 110(4) of the IRPA to be admitted as new evidence. [20] The affidavit of the Principal Appellant's father contains some information for which it is unclear when the events occurred, including the following: a. The father sometimes receives anonymous phone calls asking about the whereabouts of the Principal Appellant. The phone calls are from unknown numbers and never disclosed to the Principal Appellant. b. Whenever there are national day celebrations or police visit their locality, the police enquire about the Principal Appellant's date of return to India. c. The police started alleging that the Appellants have joined with terrorists abroad and that they will be arrested whenever they return to India or relocate anywhere in India. d. Terrorist activities are increasing in India and whenever there are any incidents, the police enquire about the whereabouts of the Principal Appellant and his date of returning, either with the father or other people in the area. Terrorists attacked Dina Nagar, Pathankot airfield in Punjab and Uri in Jammu and Kashmir. e. Since the Principal Appellant has violated police conditions, the police have become more violent now. [21] Again, the Appellants do not explain whether this information arose before or after the RPD Decision and why it was not presented to the RPD. In the absence of information regarding when these events occurred or why these specific statements regarding police harassment were not presented before the RPD when other evidence of conversations with the Principal Appellant's father regarding police harassment was presented, I find that the Appellants have not established that this evidence arose after the RPD Decision, was not reasonably available at the time of the decision, or that the Appellants could not reasonably have been expected to present the evidence to the RPD before the decision. This portion of the affidavit does not meet the criteria under section 110(4) of the IRPA to be admitted as new evidence. [22] The affidavit does refer to some events or evidence that arose after the RPD Hearing, including the following: a. On XXXX XXXX, 2021, a new police inspector came and alleged the police received information that the Principal Appellant had returned to India to disrupt Republic Day celebrations. The father told police that the Appellants are residing in Montreal, Canada and have no plans to return to India. b. The inspector slapped the father and pushed around the mother. He was aggressive and threatened to circulate the name of the Appellants to all police headquarters such that they will not be able to relocate anywhere in India. [23] I find that these particular statements in the affidavit meet the criteria of new evidence under section 110(4) of the IRPA, as they relate to events that occurred on [REDACTED] 2021, which is after the date of the RPD Decision. [24] I have gone on to consider the credibility, relevance, and newness of the evidence, as required by the case law.7 The evidence is new in that it arose after the RPD Decision. The evidence is relevant to the issue of whether the police in Punjab have an ongoing interest in the Appellants. The evidence appears to be credible in that there are no internal inconsistencies, concerns regarding the genuineness of the document, or other circumstances that lead me to doubt its credibility. This portion of the affidavit is accepted as new evidence. Document B - rejected [25] I find that the evidence regarding the Principal Appellant's work at XXXX XXXX does not meet the criteria for acceptance as new evidence in this appeal. The Appellants do not indicate clearly in their Appellants' Memorandum how this evidence meets section 110(4) of the IRPA or how this evidence is new, relevant, or credible. They state that when filing their refugee claims, they communicated through an interpreter and the interpreter did not indicate on their background declaration form the complete information regarding the Principal Appellant's employment in India, only mentioning that the Principal Appellant had owned a business. While the RPD had questioned the Principal Appellant on the evidence regarding his employment in India, it did not draw any negative conclusions about his employment in its decision. When assessing the reasonableness of the IFA locations, it accepted that the Principal Appellant had been employed as a collections manager at a finance company before starting his own taxi business in India. [26] I find, on a balance of probabilities, that the evidence of the Principal Appellant's employment at XXXX XXXX existed prior to the RPD Decision considering that he worked there prior to coming to Canada. I find that the Appellants have not established that the evidence was not reasonably available or that they could not reasonably have been expected to provide the evidence before the RPD Decision. I find this evidence does not meet the criteria under section 110(4) of the IRPA to be admitted as new evidence. No oral hearing required [27] The Appellants do not request an oral hearing. A portion of the proposed new evidence has been accepted; however, I find the criteria to hold an oral hearing pursuant to section 110(6) of the IRPA has not been met. As will be explained in my analysis below, the information in Document A that has been accepted as new evidence would not justify allowing the appeals, as I find that the Appellants have viable IFAs even in light of the new evidence. As such, no oral hearing is required. ANALYSIS [28] My role is to look at all the evidence and decide if the RPD made the correct decision.8 Scope of the appeal [29] I find that the determinative issue in this appeal is whether the Appellants have a viable IFA. In addition to a finding of IFA, the RPD also made a negative credibility finding regarding the allegation that the police in Punjab have continued to visit the family home of the Principal Appellant, inquiring about his whereabouts, and indicating that they suspect him to be involved in militant activities. [30] I find that it is not necessary to review the RPD's credibility finding or the arguments by the Appellants regarding the credibility finding by the RPD. For the purposes of the IFA analysis, I have assumed without deciding that the Appellants' evidence is credible and that the events occurred as alleged, including that there has been continued inquiries by police in Ludhiana in the whereabouts and activities of the Principal Appellant. I have also accepted as credible the new evidence submitted on appeal that there has been a recent visit by police to the home of the Principal Appellant's family, inquiring about his whereabouts and accusing him of being involved in militant activities. [31] I find that the Appellants have a viable IFA in Mumbai, Kolkata and Bangalore. While the RPD also made a finding that there is a viable IFA in New Delhi, I have not considered New Delhi as an IFA location. I find that it is not necessary to review the RPD's findings regarding New Delhi as an IFA location, as there are viable IFAs in three other cities. Internal Flight Alternative [32] The RPD correctly identified the two-pronged test for assessing an IFA:9 (1) The Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA. (2) The conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable in all the circumstances, including those particular to the claim, for the claimant to seek refuge there. [33] Both prongs of the test must be satisfied to find that a claimant has an IFA. Once the issue of IFA has been raised and potential IFAs identified, the burden of proof rests with the claimant to show that they do not have an IFA. The first prong - No serious possibility of persecution or likelihood to be harmed in Mumbai, Kolkata or Bangalore [34] I find that the Appellants have not established that there is a serious possibility of persecution, or that, on a balance of probabilities, they face a risk to their lives, a danger of torture, or a risk of cruel and unusual treatment or punishment (collectively, section 97 harm) in Mumbai, Kolkata or Bangalore. Risk at the hands of the Punjab police [35] I find that the Appellants have not established that there is a serious possibility of persecution, or that, on a balance of probabilities, they face section 97 harm at the hands of the Punjab police if they relocate to Mumbai, Kolkata, or Bangalore. [36] The Appellants allege that they are at risk because police in Punjab suspect the Principal Appellant of being involved with the individuals who left arms, ammunition and drugs in his taxi and that they therefore suspect him of being a terrorist, militant, or criminal. The Appellants allege that if the Principal Appellant is not found by the police, the Associate Appellants are at risk of persecution or harm from police in his stead, as was the case when the police arrested and tortured the adult Associate Appellant in XXXX 2018 when they could not locate the Principal Appellant at the family's residence. [37] The RPD found that, even if it accepted that the police have visited the Principal Appellant's family looking for him, it appears that the motivation of the police is not necessarily to find the Principal Appellant but rather to extort money from his family. It found that this appears to be the actions of some corrupt police officers in Ludhiana, rather than the Punjab police force as a whole. [38] On appeal, the Appellants argue that the police have the means and motivation to pursue them in the proposed IFA locations. They concede that when the Principal Appellant was apprehended with the two bags of objectionable items, there was no other proof and hence no legal charge was levied. However, they argue that "the police wanted a scapegoat to be presented in greed of prizes."10 The Appellants quote evidence from the National Documentation Package (NDP) for India, which states that illegal detentions are quite common in India and that sections of the Indian Penal Code regarding the arrest and detention procedures are often not honoured. They argue that the Principal Appellant does not have an official charge or warrant against him but that the police or security agencies can detain him anytime without following the protocols and that "even if a person is not officially wanted by the police (as there is no legal case against him) but the police need him for their own purpose, there is high possibility of him being apprehended as the "wanted database also works according to the daily police dairy [sic]."11 [39] I find that the RPD was correct to conclude that the treatment experienced by the Appellants at the hands of the police, and the ongoing threats and harassment of the Principal Appellant's family by police, are a result of the corrupt actions of police officials in Ludhiana who are motivated by greed rather than a genuine interest in pursuing a criminal investigation against the Principal Appellant. The Appellants concede that the Principal Appellant is not facing terrorism charges and that the Punjab police have been motivated by greed. The documentary evidence in the NDP indicates that corruption is widespread in India and officials frequently engaged in corrupt practices with impunity.12 The evidence indicates that significant human rights issues included unlawful and arbitrary killings, torture, and cruel, inhuman or degrading treatment or punishment by some police, and a lack of trained police officers.13 The evidence indicates that police fail to file required arrest reports for detained persons and use torture as a means to extort money or as summary punishment.14 [40] I find that, in the particular circumstances of the Appellants, the risk they face is limited to Punjab state and that there is not a serious possibility of forward-looking risk of persecution or, on a balance of probabilities, a risk of section 97 harm in Mumbai, Kolkata or Bangalore. The police in India fall under state jurisdiction.15 The activities and interests of the police in one state do not necessarily extend to other states within India. [41] I have considered the new evidence on appeal that a new police inspector visited the family of the Principal Appellant in Ludhiana in XXXX 2021 and threatened to circulate information regarding the Appellants to all police headquarters such that they will not be able to relocate anywhere in India. I find that this threat is insufficient to establish that there is a serious possibility of persecution to the Appellants in the proposed IFA locations. Accepting as credible that the police inspector made this threat to the Principal Appellant's father, I do not find that there is a serious possibility that the threat will be acted upon. According to the Appellants, the police in Ludhiana has been harassing the Principal Appellant's family and requesting bribes for the past three years. Throughout this time the police have not opened an official investigation into the Principal Appellant. The allegations by the Ludhiana police inspector that the Appellants are involved in recent militant activities within India are clearly without foundation, as they have been in Canada since 2018. Given that the Principal Appellant is not the subject of an official investigation, warrant, or charge, and given my findings that the police in Punjab were, on a balance of probabilities, pursuing the family for extortion rather than a legitimate investigation, I find that there is not a serious possibility that the Punjab police would pursue the Appellants outside their area of jurisdiction in Punjab or that the police in any of the proposed IFA locations would have any interest in the Appellants. I find that any risk of future illegal detention in any of the IFA locations is speculative. [42] While the Appellants argue that there are some resources for state law enforcement to coordinate with other states regarding individuals identified as criminals, I find that the Appellants have not established, on a balance of probabilities, that their prior arrests or detention were documented by the Punjab police in any database or diary entry that would be accessible through inter-state criminal information systems such as the Crime and Criminal Tracking Network and System (CCTNS) or in any other police database that would bring them to the attention of authorities in the proposed IFA locations or that would allow the Punjab police to locate them outside that state. [43] Documentary evidence regarding CCTNS states that it is intended to be used to input all First Incident Reports (FIRs), which serve as the first official record of a criminal complaint and serves to activate a police investigation.16 As noted by the Appellants in their Appellants' Memorandum, other documentary evidence indicates that daily diary or general diary accounts and other forms are also recorded in CCTNS.17 However, the documentary evidence also indicates that no official record of extra-judicial arrests is maintained in official criminal databases, including CCTNS.18 [44] In this case, the Principal Appellant testified that the police in Punjab arrested and detained him after his taxi was stopped at the police roadblock in Haryana. The Principal Appellant testified that the police did not file any complaint or charge against him and only threatened to do so.19 His evidence is that he was not brought before a court or magistrate.20 The Appellants' evidence is that the adult Associate Appellant was detained as a proxy when the Punjab police later could not locate the Principal Appellant. The evidence does not establish, on a balance of probabilities, that an FIR or any other record of the Appellants' detentions were documented by police or input into a database. [45] Citing evidence from the NDP, the Appellants argue on appeal that concerned officers can seek information through normal official channels. This evidence does not assist the Appellants, as they have not established that there is a serious possibility that the Punjab police or the police in the proposed IFA locations would seek out information regarding the Appellants. [46] Even in the event that the Appellants are required to undergo tenant verification or other background checks to settle in the IFA locations, the evidence in the NDP indicates that the tenant verification process involves a search of databases include the CCTNS for records of registered cases or charges.21 While the evidence in the NDP indicates that the police do not follow through with all verifications once filed,22 even if a local police force in the IFA locations did process a tenant verification or other background check regarding the Appellants, there is not a serious possibility that it would uncover a record of their past interaction with the Punjab police. [47] I conclude that the Appellants do not face a serious possibility of persecution or, on a balance of probabilities, a risk of section 97 harm at the hands of Punjab police or local police in the IFA locations, if they return to India and relocate to Mumbai, Kolkata, or Bangalore. Risk at the hands of the Delhi police [48] In their BOC form narratives, the Appellants do not allege any risk at the hands of the Delhi police. However, at the RPD Hearing, the Principal Appellant stated that he fears the Delhi police.23 He testified that he approached the Delhi police seeking their protection due to the threats and mistreatment from the Punjab police. He testified that rather than provide the Appellants with protection, he believes the Delhi police informed the Punjab police of their presence in Delhi, as the Punjab police attended their home in Ludhiana the following day looking for the Appellants. The Principal Appellant also testified that the Delhi police searched for the Principal Appellant at his aunt's home in Delhi on XXXX XXXX, 2018. [49] Accepting as credible that the Delhi police searched for the Principal Appellant in 2018, even where the RPD found this not to be credible, I find that there is not a serious possibility of forward-looking persecution at the hands of the Delhi police in the IFA locations. The Appellants do not allege, and the evidence does not establish, that there have been any inquiries by the Delhi police into the whereabouts of the Appellants in the past three years. The XXXX 2019 affidavit of the Appellant's aunt, who continues to live in Delhi and who accompanied the Principal Appellant to request the Delhi police's protection, does not indicate that there have been any subsequent visits by police to her home or inquiries with her regarding the whereabouts of the Appellants. The Appellants are not accused of any crimes for which the Delhi police have jurisdiction. The Appellants do not allege, on appeal, that there is an ongoing risk to them at the hands of the Delhi police. I find that the Appellants have not established that they face a serious possibility of persecution at the hands of the Delhi police or that, on a balance of probabilities, they face a risk of section 97 harm at the hands of the Delhi police in Mumbai, Kolkata or Bangalore. Risk at the hands of the smugglers [50] The Appellants allege that they are at risk of persecution or harm at the hands of the individuals who left the bags of arms, ammunition, and drugs in the taxi of the Principal Appellant. The Principal Appellant testified that he believes the smugglers are looking for him and will want to harm or kill him.24 When asked how he knew that the smugglers are looking for him, he stated, "I do not have any information but it's the fear in my mind."25 [51] The RPD found that it was speculative that the smugglers are looking for the Principal Appellant in the IFA locations. It considered that the Principal Appellant remained in Delhi for many months without being contacted by the smugglers. It considered that the Principal Appellant did not have any knowledge that the smugglers were looking for him, only that it was a fear that he had. [52] On appeal, the Appellants argue that the RPD was incorrect in its finding that the risk to the Appellants at the hands of the smugglers is speculative. In response to the RPD's concern that the Principal Appellant was able to stay in Delhi for several months without getting approached by the smugglers, they argue that it can only be speculated as to whether the smugglers had a base in Delhi or were using Delhi as a transit point. They also argue that the smugglers have the motivation to seek the Principal Appellant as the Principal Appellant had seen them firsthand and could be used by the police to apprehend them at any point in time, or because they are looking for their bags. The Appellants also point to the evidence in the Principal Appellant's father's affidavit that he has received anonymous phone calls asking the whereabouts of the Appellants. [53] I find that the RPD was correct to conclude that the risk at the hands of the smugglers is speculative. It has been established that, during the time that the Principal Appellant was in Delhi after the incident, he had no contact with the smugglers. It is speculative that the smugglers are interested in the Appellants at all three years later, whether because they would be looking for their bags or because of a concern that the Principal Appellant would identify them to police. The evidence that the Principal Appellant's father has received anonymous phone calls, which was rejected as new evidence, does not establish, on a balance of probabilities, that the phone calls are coming from the smugglers. I find that the Appellants have not established that they face a serious possibility of persecution at the hands of the smugglers or that, on a balance of probabilities, they face a risk of section 97 harm at the hands of the smugglers in Mumbai, Kolkata or Bangalore. The second prong - Relocation to Mumbai, Kolkata or Bangalore is not objectively unreasonable [54] The RPD found that it would not be objectively unreasonable for the Appellants to relocate to New Delhi, Mumbai, Kolkata or Bangalore. The RPD noted that, although the Appellants argued that without money they would not be able to survive, they did not articulate why they could not earn money. The RPD considered that the Appellants are highly educated with bachelor's degrees, the Principal Appellant has work experience in India as a XXXX XXXX at a XXXX XXXX and XXXX XXXX at a XXXX XXXX, and operated his XXXX XXXX business, and the adult Associate Appellant has work experience as a XXXX XXXX in India. Both have further work experience in Canada. Both adult Appellants speak Hindi, Punjabi and English. The RPD concluded that the Appellants were well positioned to find employment in the proposed IFAs and earn income to provide for their family. [55] On appeal, the Appellants argue that relocation to any of the proposed IFA locations is not reasonable for the following reasons: a. The Principal Appellant would be required to undergo a background check as a mandatory procedure for any job in the organized sector, which would reveal their location; b. For the Principal Appellant to start a XXXX business again, he would have to apply for a loan, which involves a background check, which would reveal their location; c. It would be next to impossible to build a reputation in a new place; and d. It would be impossible for the Appellants to establish a good level job or business in India, in order to live a decent life like they have been used to. [56] The Federal Court of Appeal in Thirunavukkarasu held that a claimant cannot be required to encounter great physical danger or to undergo undue hardship in travelling to or in staying in an IFA location; however, it is not enough for refugee claimants to say that they do not like the weather in a safe area, or that they have no friends or relatives there, or that they may not be able to find suitable work there.26 [57] I find that the RPD was correct to conclude that it is not objectively unreasonable for the Appellants to relocate to Mumbai, Kolkata, or Bangalore. I have already concluded that the Appellants have not established, on a balance of probabilities, that they face any formal charges or that their detentions by the Punjab police were documented in any databases or systems accessible by police in other states. I find that there is a not a serious possibility that applying for a job or a loan will trigger a concern by police in the IFA locations or trigger notification to the Punjab police if a query is conducted through CCTNS. Furthermore, while it may take time and effort for the Appellants to achieve the lifestyle to which they have become accustom either in Punjab or in Canada, the threshold for assessing the reasonableness of an IFA location is whether it would jeopardize the lives and safety of the Appellants. I find that the Appellants have not established that their lives or safety would be jeopardized in the IFA locations. The adult Appellants both have university educations, work experience in various fields, and speak Hindi, Punjabi, and English. I agree with the finding of the RPD that they are well positioned to find employment in the proposed IFAs and earn income to provide for their family. [58] I note that the Appellants argue that, for the benefit of the minor Associate Appellant, the appeal should be allowed. The Appellants do not make any specific arguments as to any risk faced by their child in India or any reason why she could not relocate with the Appellants to any of the IFA locations. I find that the Appellants have not established a basis for the appeal to be granted in respect of the minor Associate Appellant. [59] I have also considered that the adult Appellants allege that they were tortured by Punjab police and that the adult Associate Appellant alleges that she was tortured and sexually assaulted by Punjab police. However, I have already found that there is not a serious possibility that the Punjab police will pursue the Appellants in the IFA. The Appellants have not raised any additional arguments before the RPD or on appeal regarding the impact of their experiences in detention on the reasonableness of relocating within India. Conclusion on Internal Flight Alternative [60] Having conducted an independent assessment of the evidence, I conclude that the Appellants have a viable IFA in Mumbai, Kolkata and Bangalore. They do not face a serious possibility of persecution or, on a balance of probabilities, a risk to their lives or a risk of cruel and unusual treatment or punishment in Mumbai, Kolkata or Bangalore. It would not be objectively unreasonable in all the circumstances for the Appellants to live in any of these locations. CONCLUSION [61] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Laura Ko Laura Ko January 10, 2022 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, subsection 110(4). 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 4 Transcript of RPD hearing (June 16, 2021), at p. 20. 5 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 14. 6 Eshetie v. Canada (Citizenship and Immigration), 2019 FC 1036 (CanLII), at paras 33-34; see also Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, at para 54. 7 Supra., footnote 3. 8 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145, [2019] 2 FCR 597. 9 Rasaratnam v. Canada ( Employment and Immigration), [1991] F.C.J. No. 1256, [1992] 1 F.C. 706 (F.C.A.). 10 Exhibit P-2, Appellants' Record, Appellants' Memorandum, at p. 14. 11 Ibid., at p. 15. 12 Exhibit RAD-1, National Documentation Package (NDP) for India (June 30, 2021), item 2.1: India. Country Reports on Human Rights Practices for 2020., United States. Department of State., at p. 38. 13 Ibid. 14 Ibid., at pp. 5-6. 15 Ibid., at p. 1. 16 Ibid., item 10.6: Surveillance by state authorities; communication between police offices across the country, including use of the Crime and Criminal Tracking Network and Systems (CCTNS); categories of persons that may be included in police databases; tenant verification; whether police authorities across India are able to locate an individual (2016-May 2018), Immigration and Refugee Board of Canada (IRB), at p. 8. 17 Ibid., item 10.13, Police databases and criminal tracking, particularly the Crime and Criminal Tracking Network and Systems (CCTNS); relationship with the Aadhaar and tenant verification systems; capacity to track persons through these systems (2019-May 2021), IRB, at p. 6. 18 Ibid., at p. 7. 19 Transcript of RPD hearing (June 16, 2021), at p. 34. 20 Ibid. 21 Exhibit RAD-1, NDP for India (June 30, 2021), item 10.13, at pp. 7-8; item 14.8: Requirements and procedures for tenant registration (or tenant verification), including implementation, particularly in Delhi, Mumbai, Kolkata and Bengaluru (2016-May 2019), IRB. 22 Ibid. 23 Transcript of RPD hearing (June 16, 2021), at p. 21. 24 Ibid., at p. 26. 25 Ibid., at p. 27. 26 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC1-05698 MC1-05699 / MC1-05700 RAD.25.02 (August 20, 2021) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (August 20, 2021) Disponible en français

Response:
## Analysis of Refugee Decision: MC1-05698

### Key Issues
ts: a. Attempt to rectify the issues of credibility with explanations and new evidence; b. Argue that the police and smugglers have the means and motivation to locate them anywhere

### Legal Analysis
The decision analyzes refugee protection criteria by examining: t. As will be explained in my analysis below, the information in Document A that has been accepted as new evidence would not justify allowing the appeals, as I find that the Appellants have viable IFAs even in light of the new evidence. As such, no oral hearing is required. ANALYSIS [28] My role is to look at all the evidence an

### Implications for Immigration Practice
This decision provides guidance for refugee claimants on evidentiary requirements and credibility assessments. Legal practitioners should carefully document client narratives and address potential inconsistencies proactively. The case demonstrates the importance of thorough country conditions research and proper preparation of witnesses.