14I have reviewed the record and conducted an independent assessment of the evidence. On the basis of the new evidence, I find, on a balance of probabilities, the Appellants would be personally subjected to a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture should they return to Colombia. I therefore do not find it necessary to address the RPD’s credibility findings or the Appellants’ arguments in response to them.

[12] I find the RAD’s reasoning to be unduly conclusory in light of the full context, which Vavilov instructs reviewing Courts to consider holistically. The Court noted at paragraph 103, “formal reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis”. I will now explain how the RAD fell short with respect to the specific circumstances of this case.

[13] Here, the RAD relied primarily on the two new newspaper reports, one published by InSight Crime Analysis and the other by Human Rights Watch. These articles highlighted threats from groups such as the National Liberation Army (ELN) and FARC in certain specific, rural areas of the country, including with respect to child recruitment. The RAD, pointing specifically to these two articles (as well as one other from the national documentation package for Colombia that had been before the RPD), noted an uptick in child recruitment, threats to parents to have their children join the groups, and the difficulties faced by the state to combat child recruitment in remote areas. So far, the RAD’s rationale was sound.

[14] However, from there, the RAD drew a direct line to the fact that the claimants included two children, and would therefore presumably be in danger, and subject to a s 97 risk. This is where the RAD erred. The RAD arrived at its deduction without any consideration of the articles’ comments on the circumstances surrounding the recruitment described, including that it was reported to be prevalent in rural and remote locations. Hence the finding that the RAD’s rationale was conclusory in nature, going from a finding that input (A), that the claimant family included two children, without any discussion of input (B) whether there was any risk that these particular children, given their age, family profile, and location, might be targeted, arriving directly at the outcome in having deduced that (C) the family was at risk.

[15] In so doing, the RAD missed the crucial interstitial step (B) between input (A) and a justifiable, transparent conclusion (C). In other words, step (B) required the tribunal to consider whether these children indeed resided in rural locations, or in parts of the country mentioned by the articles. The RAD also failed to consider, as a result of a reading of these two articles, whether the principal applicant, the mother, had been threatened.

[16] For this reason alone, given the requirements of a s 97 analysis as outlined in Prophète and Dag, above, the RAD’s decision does not add up per the requirements of Vavilov, which also states at paragraph 104:

104Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”.

[17] As mentioned above, while Respondents’ counsel admitted weaknesses in the decision, he stated that it nonetheless withstood judicial review if one read the decision in the context of the entire record. In this regard, counsel also relied on Cepeda-Gutierrez v. Canada (MCI), 1998 CanLII 8667 (FC), 83 ACWS (3d) 264, at paras 16-17, for the point that such a statement will often suffice to convince a reviewing Court that the decision maker directed itself to the totality of the evidence when making findings of fact.

[18] I cannot agree that the blanks can simply be filled in by a reading of the hundreds of pages of the record in this case, not to mention all the evidence in the national documentation package. Vavilov requires more than a reviewing Court being able to fill in the reasons for the decision-maker. While a contextual approach of the type endorsed by the Supreme Court in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, may have sufficed to filling in the blanks pre-Vavilov, the Court has since cautioned of the limitations of such an approach, in Vavilov at paragraph 97, and its endorsement of Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431 at para 11, where Justice Rennie held:

Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn.

[19] As noted on this score in Ortiz v. Canada (Citizenship and Immigration), 2020 FC 188 at para 22, Vavilov requires a reasons first approach: the judge is to start with the reasons, and assess whether they justify the outcome (see also Paul Daly, “One Year of Vavilov”, 2020 CanLIIDocs 3614 at p 6).

[20] Here, starting with the RAD’s reasons, there were simply no dots to connect the lines drawn by the RAD, in that the new evidence related to isolated incidents of the recruitment of children to fight with FARC and related dissident groups, in other words a generalized risk to children in parts of Columbia. The reader is thus left to guess why, in the particular circumstances of the Respondents and absent any identified errors, the objective evidence alone warranted reversing the RPD’s decision. Is the RAD tacitly implying that the country condition articles alone are sufficient for a finding of a generalized risk, whereby no child is safe in Colombia? Is the finding of risk general to all Colombian children or particular to the Respondents? When asked whether the counsel was aware of any similar decision – where the mere fact of fitting within the category of children, without more, led to the conclusion of s 97 risk – counsel was unable to point to any decision.

[21] Finally, I note that if the RAD were to have referred to the evidence of the threat to the principal applicant, it would have needed to heed the directives in Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 at paras 70 and 102-103. To do so, the RAD would have needed to point out the errors that allowed it to depart from the RPD’s findings, in this case the credibility findings that were found by the RPD to be determinative.

[22] Here, absent any independent analysis by the RAD as to whether the RPD’s credibility findings were reached in error, it is not for this Court to supplant the tribunal’s role. Indeed, as the Respondents acknowledge, it is not the role of this Court to reweigh the evidence. I entirely agree. The Court cannot reweigh the evidence, because the RAD never did so in the first place. In failing to do so, the RAD abdicated its appellate role in these particular circumstances.

[23] If, on the other hand, the RAD had explicitly addressed the Applicants’ particular circumstances, it may have been open to the RAD to determine that specific elements of the objective record were determinative in light of their circumstances and in spite of the credibility concerns identified by the RPD. However, such a finding would need to be transparently articulated, and justified with an intelligible explanation.

IV. Conclusion

[24] Where – as here – we are left guessing as to the foundation of the s 97 risk, we are not in the presence of a reasonable decision that can be described as adequately transparent and justified, particularly in light of the determinative credibility findings of the decision under appeal. The RAD’s decision will thus be returned to the tribunal for reconsideration.

JUDGMENT in IMM-1769-21

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is granted.

2. The matter is to be sent back to a differently constituted panel of the tribunal for redetermination.

3. There is no question for certification.