MB9-26140

RAD File No. / No de dossier de la SAR : MB9-26140 MB9-26141 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision October 19, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the persons who are the subject of the appeal Jorge J. Colasurdo Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] This is the appeal filed by XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, citizens of the United Mexican States, against a decision rendered by the Refugee Protection Division (RPD) on September 19, 2019, rejecting their claims for refugee protection. [2] According to the written account, the appellants allege that they were threatened and harmed at the beginning of XXXX 2017 by an individual named XXXX XXXX XXXX and a group of people who XXXX XXXX XXXX XXXX XXXX XXXX in the neighbourhood where they lived. In XXXX 2019, while they were in Canada, they found out that XXXX XXXX XXXX and the other members of the group were linked to the Cartel Jalisco Nueva Generación. [3] The RPD rejected the appellants' refugee protection claims because there is an internal flight alternative (IFA). [4] On appeal, the appellants submit the following arguments: 1. The appellants were perceived as a [translation] "threat" by the cartel-obvious interest in tracking them down across Mexico; 2. The analysis of the second prong of the IFA lacks rigour-the RPD did not consider: 2.1 The principal appellant's age ---" difficulty finding work. 2.2 The fact that they receive no financial assistance. 2.3 That they are women in Mexico-undue hardship; 3. The appellants' allegations are consistent with the objective documentary evidence regarding the situation in Mexico. [5] The appellants are asking the Refugee Appeal Division (RAD) to set aside the determination and substitute the determination that should have been made, namely allow the refugee protection claim or refer the matter before the RPD for re-determination by a differently constituted panel. [6] The appellants are not asking to present new evidence under subsection 110(4) of the Immigration and Refugee Protection Act1 (IRPA) and do not want an oral hearing to be held under subsection 110(6) of the IRPA. [7] The Minister's representative did not intervene in the appeal. DETERMINATION [8] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the determination, namely that Maria Del Carmen Izaguirre Arrieta and Beatriz Santillan Izaguirre are neither "Convention refugees" nor "persons in need of protection" within the meaning of sections 96 and 97 of the IRPA. [9] The appeal is dismissed. SCOPE OF THE APPEAL [10] For questions of fact, law, and mixed fact and law, the RAD must apply the correctness standard of review in accordance with Huruglica.2 [11] I conducted an independent analysis of all the evidence on the record, after listening carefully to the hearing, to form my own opinion about this claim for refugee protection and to determine whether the RPD's decision is correct. ANALYSIS [12] Having considered all the testimonial and documentary evidence on the record, the RAD has reached the same conclusion as the RPD, i.e. that the appellants have an IFA in Mexico. [13] The appellants are of the opinion that the RPD failed to properly assess the claims and that the impact on the decision is to suggest that the appellants would not be persecuted in their country. [14] The first matter raised in the memorandum is that the appellants were perceived as a threat by the cartel and that it is therefore obvious that the members of this group would try to track them down in Mexico. The RPD stated in its decision that [translation] "despite the events they experienced, the panel is still of the opinion that an IFA exists for the claimants in Mexico." What about the testimony? [15] The two appellants mentioned that they fear XXXX XXXX XXXX, who could attack and kill them. A few weeks after they moved into their new house, they started to be intimidated and threatened by Mr. XXXX XXXX. They claim that loud music was being played in the district and that it disturbed them. A complaint was made to the police and the condominium administration. As well, they asked the security at the place to put a stop to this noise. During the hearing, it was revealed that XXXX XXXX XXXX is the executive secretary of his neighbourhood subdivision. The claimants state that the intimidation began after the complaints. Disparaging remarks were made to them; it was insinuated that they had not paid the condominium fees and in light of these reports there were death threats against them. [16] Given the scope of the problems, they wrote to the chair to complain about the situation. They believed that the problems would be resolved and that the authorities would help them. Another incident occurred on XXXX XXXX, 2017. While she was waiting for her daughter outside her workplace, two men allegedly approached the vehicle and threatened to kill them. They then took refuge at the house of a relative, XXXX, the principal appellant's daughter and the sister of the second. In XXXX XXXX, 2017, XXXX allegedly received a visit from some men who asked where "XXXX" was. They added that people were looking for them and [translation] "I don't know why," according to XXXX XXXX XXXX XXXX XXXX. On XXXX XXXX, 2019, some individuals went to XXXX house, knocked on the door and windows, and said they knew the appellants were no longer in Mexico. [17] That is in essence what the appellants stated regarding their fear. [18] It should be noted that the written account originally submitted does not mention the Jalisco Nueva Generacion cartel. A few days before the hearing, the appellants submitted an amended account. It was not until XXXX 2019 that they received this important information from her daughter XXXX. They were asked to explain this important statement as initially it was just a matter of differences between residents of a condominium complex whose secretary wanted to attack the appellants. Several months after these allegations, XXXX told them that it is now members of a cartel who want to attack them. These individuals allegedly showed up and told XXXX about their association with the cartel. Also, it was not until the end of the hearing that the principal appellant made the connection between XXXX and the group of criminals, as she calls them, namely the Jalisco Nueva Generacion cartel. [19] They told the member that they had abandoned their furnished home without knowing what will happen to it. She does not know what the situation is with the bank, her mortgage and, above all, the substantial down payment she made to buy the house. The same is true for their respective jobs. They left everything behind. Lastly, the member asked what the cartel's interest was in looking for the appellants. The terse reply provided was [translation] "don't know, they think I have some information about them." [20] It should be noted that this statement is an addition to the written account submitted, which was amended before the hearing for present purposes. This undermines their credibility. [21] Contrary to the appellants' claim that they pose a threat to the cartel, the panel believes the opposite. The cartel mentioned in this case seems powerful and dangerous, according to the documentary evidence.3 Some analysts report that this cartel has a presence in the Americas, Asia and Europe. In addition, it reportedly controls ports to get chemicals coming from China and South America to produce drugs. In addition, it goes after political authorities, the police and even the army using its heavy weaponry. The RAD is of the opinion that the appellants are of little interest to this group of criminals, this cartel that is involved in big business and that traffics several millions of dollars' worth of drugs and weapons annually. [22] The second matter raised in the memorandum concerns the second prong of the IFA. They argue that the analysis lacks rigour. In addition, they are of the view that the RPD did not consider the principal appellant's age, employment, lack of financial assistance and the fact that women in Mexico face difficulties. [23] The RAD understands that the first prong was properly analyzed by the RPD. It will only address the second prong. The appellants' memorandum rightly points out that Rasaratnam4 is relevant. The second prong concerns reasonableness, taking into consideration all the circumstances. In other words, the IFA is unreasonable if the conditions in the IFA jeopardize the life or safety of the refugee protection claimant. In addition, the individual's personal circumstances, such as the presence of family members, the ability to earn a living, their age and their physical and psychological health must be taken into account. An individual cannot be required to encounter great physical danger or to undergo undue hardship in travelling to the IFA or staying there. [24] The RPD proposed the states of Yucatan and Chiapas as IFAs. As mentioned above, the appellants are not contesting the first prong of the IFA. Moreover, the panel concluded that there is little interest in looking for the appellants due to their past, that they are not involved in drugs or trade associated with the unlawful activities of this cartel. [25] Both appellants had good jobs. The principal appellant was a businesswoman and her daughter worked at a company that imports machinery for railways in addition to doing the accounting for her mother's business. The panel understands that the two women had good jobs, that they did well with regard to employment, which enabled the principal appellant to buy a house. They were both in the workforce and therefore their age, they are young, does not affect their ability to find employment solutions. [26] When they were asked whether they can find work in the two states mentioned, the answer was no. They added that they do not want to go back to Mexico and fear for their lives. They repeatedly stated that they do not want to go back to Mexico because they are looking for them. When the member suggested that they had not established the cartel's interest in them, they answered that they had no idea. [27] The RAD is of the opinion that the two appellants would be able to live, work and thrive in one of the two states proposed by the RPD member. They did not answer or give examples of what would prevent them from moving there and living there. They have no physical or psychological limitations. Therefore, it is not unreasonable for them to move to one of these states. [28] A third matter raised in the memorandum concerns the appellants' allegations, which are apparently consistent with the documentary evidence on Mexico. As noted above, there are many cartels in Mexico due to the geographic link between South America and the United States of America primarily. Drug trafficking to the north and Europe is endemic. Therefore, various groups are trying to cash in on the large amounts of money to be made through drug trafficking. The panel does not disagree with that. However, in this particular case, the two women had difficulties with their condominium management, which led them to leave the place. It was not until almost two years later that the appellants found out that XXXX XXXX XXXX, the condominium secretary, was associated with the Jalisco cartel and became more afraid of him. Besides the fact that this is relevant information, it is curious, to say the least, that an individual who wants to attack someone would not mention his connections with such a powerful group at the earliest opportunity to intimidate his victims. [29] Consequently, the RAD is of the opinion that the RPD did not err. [30] For the reasons set out in this decision, the RAD is of the opinion that the RPD rendered the correct and appropriate decision. REMEDY [31] In light of all the facts noted above and after reviewing all the evidence, for these reasons, the RAD confirms the determination of the RPD, namely that XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX are neither "Convention refugees" under section 96 of the IRPA nor "persons in need of protection" within the meaning of section 97 of the IRPA. [32] The appeal is dismissed. (signed) Michel Jobin Me Michel Jobin October 19, 2020 Date IRB translation Original Language: French 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Mexico: Organized Crime and Drug Trafficking Organizations, Tab 7.2 of the National Documentation Package, February 28, 2020, United States. Congressional Research Service. 4 Rasaratnam v. Canada, (Minister of Employment and Immigration), 1992 1 FC, 706 (CA). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-26140 MB9-26141 RAD.25.02 (January 2020) Disponible en français 5 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 (January 2020) Disponible en français