MB5-00748

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 File No. / N° de dossier de la SAR : MB5-00748 Private Proceeding / Huis clos Reasons and decision ? Motifs et decision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at A hearing was held on July 9, 2015 by videoconference in Halifax, Nova Scotia (Respondent) and Montreal, Quebec (RAD and Appellant) Appel instruit à Date of decision September 3, 2015 Date de la décision Panel Stephen J. Gallagher Tribunal Counsel for the person who is the subject of the appeal Dillon Trider Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister Veronique Aubry Conseil du ministre REASONS FOR DECISION [1] Mr. XXXX XXXX XXXX is 33 years old of Kenyan nationality and in possession of a permanent resident card from Mexico. He is Respondent to an appeal of his positive RPD decision lodged by a Representative of the Minister of Citizenship and Immigration (the Minister). The Appellant has presented new evidence and has requested an oral hearing. DETERMINATION OF THE APPEAL [2] The determinative issue in this appeal is that there is credible evidence that the Respondent has permanent residence status in Mexico. I conclude that this evidence has not been refuted by the Respondent. As such, the Respondent might now claim protection against Mexico, which he has done at the RAD hearing. In reviewing the Respondent's allegations with respect to Mexico, I find that the risk faced by the Respondent is a 'generalized risk' in one case and in another case, the risk was confined to a single event and this risk has passed. Based on the Immigration and Refugee Protection Act (IRPA) the Refugee Appeal Division (RAD) overturns the decision of the RPD and concludes that Mr. XXXX XXXX XXXX is a person referred to in Article 1E of the Refugee Convention. Therefore, he is not a Convention Refugee and is not a person in need of protection. BACKGROUND [3] The Appellant alleges that if he is forced to return to Kenya or Mexico, he will face treatment and a situation which must be understood as persecution or as a risk as understood in s. 97 of IRPA. [4] The Respondent is a professional distance runner of the XXXX ethnic group of Kenya. The Respondent alleges that in 2005 violence broke out between the XXXX and XXXX ethnic groups and the Respondent was required to join an organization identified as the XXXX XXXX XXXX'. The Respondent alleges that he refused, and he and his family were branded traitors. The Respondent managed to leave Kenya in 2007 and lived in Venezuela until 2010 when he spent a part of the year living, training and running in the US. [5] The Respondent, while visiting the US, alleges that he first entering Mexico on a six-month visitor's visa in 2011. This evolved into a one-year visa. The Respondent managed to orchestrate the arrival of this wife from Kenya in 2013. The Respondent then received a permeant resident card after his third one-year non-immigrant card expired in XXXX 2014. In late XXXX 2014, the Respondent and his wife traveled to Canada to compete in a running event in XXXX, XXXX for which they had previously separately received visas to attend (issued on May 14, 2014). [6] Fearing return to Kenya, the Respondent and his wife lodged refugee claims in late July 2014. The RPD recognized the Respondent and his wife as convention refugees in a decision dated January 22, 2015. This decision with respect to the Respondent was appealed by the Minister by submitting a Notice of Appeal, which was received by the RAD on February 13, 2015. SUBMISSIONS [7] The Appellant argues that the RPD erred in its analysis of the evidence such that it failed to recognize that the Respondent had a "status similar to nationals in Mexico" at the time of the RPD hearing. This is because the Respondent was a legal permanent resident of Mexico. The Appellant therefore argues that section E of Article 1 of the Refugee convention applies to the Respondent. [8] In terms of an outcome from this appeal, the Appellant seeks to overturn the RPD decision granting refugee status to the Respondent. For his part, the Respondent seeks to have the RAD affirm the decision of the RPD that the Respondent must be recognized as a Convention refugee (i.e., dismiss the appeal). ROLE AND FUNCTION OF THE RAD [9] I note that the RAD has now received Federal Court guidance on the role of the RAD vis-à-vis RPD decisions. Justice Phelan in Huruglica1 states that the RAD "must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection". Justice Phelan suggests that while the RAD might show some deference on a credibility assessment and/or where the RPD enjoys a particular advantage in reaching such a conclusion, in other areas, such as an assessment of country conditions evidence, the RAD need not be deferential. In Njeukam,2 Justice Locke references Huruglica and suggests that "Except in cases where the credibility of a witness is critical or determinative or when the RPD has a particular benefit from the RAD to draw a specific conclusion, the RAD must not give any deference to the analysis of the evidence made by the RPD". [10] Following Huruglica and Njeukam, I conclude that where in this appeal an issue turns on a question of fact, specifically the RPD's assessment of the credibility of the Respondent when applied to the specific situation of the Respondent, the RPD's credibility assessment must be granted deference unless the issue was canvased during the RAD hearing. I conclude that in issues which turn on a question of mixed law and fact, specifically the RPD's assessment of whether the Respondent has permanent residence status in Mexico, I must reach my own conclusion based on my own assessment of the evidence and I do not need to show deference to the RPD's conclusions. ON THE REQUEST TO PRESENT NEW EVIDENCE AND A REQUEST FOR A HEARING [11] The Appellant provides new evidence in the form of a letter from the Mexican government setting out that the Respondent is recognized by the Mexican government as a permanent resident (Appellant's Record, p. 20). Based on section 110(1.1) of IRPA, I am accepting this evidence. [12] I must conclude that this evidence has the potential to affect the final disposition of this appeal and I note that the Minister has requested a hearing (Appellant's Record, p. 13). I find, therefore, that this new evidence is sufficient to justify the holding of a hearing. The Appellant's request for a hearing is therefore granted. ANALYSIS OF THE MERITS OF THE APPEAL Issue 1: Does the Respondent have permanent resident status in Mexico ? [13] I must conclude that the evidence shows that in fact the Respondent has a permanent residence status in Mexico. Put simply, the government of Mexico through a representative, identified as Mr. Alfredo Feria, Deputy Consul General, Consulado General De Mexico in Montreal (Appellant's Record, p. 20), recognizes the Respondent as a permanent resident of Mexico. [14] The sole potentially mitigating consideration could be that the government of Mexico might withdraw this status at some point because it was given as a 'mistake'. According to the Respondent: 4. The evidence before the RPD in this matter demonstrates that the Respondent has not resided in Mexico for 4 years, contrary to what is stated by Mexican Consular authorities. As such, Mr. XXXX is ineligible at law for permanent resident status in Mexico, pursuant to section 5, Article 54 of the Mexican Migratory Act (Respondent's Memorandum, paragraph 4). [15] The Respondent is essentially arguing that, given a review of the Mexican migration legislation disclosed into evidence (Appellant's Record, pp. 22-35), including the testimony of the Respondent and the developed logic of the RPD decision, "there continues to be insufficient evidence to show that Mr. XXXX is a permanent resident of Mexico" (Respondent's Memorandum, paragraph 27). [16] In response, the core logic of the Minister, as noted above, is that the Respondent is in possession of a permanent resident card and the Minister has established, through direct correspondence with the relevant authorities in the Mexican government, that, in fact, the Respondent is recognized as a permanent resident. With respect to the allegation that this card was given the Respondent in error and that the Respondent's allegations that he communicated a concern that this card was given in error to a Mexican official when he received the card, I note that the Minister submits that: 12. The Minister contends that if the claimant had indeed informed the officer at the Mexican immigration office of the mistake concerning the status indicated on his card, it is unlikely that a) he would have been allowed to keep and use the card as he alleged and b) that he would still be registered as a Permanent Resident of Mexico nine months later, after verification of his status by the competent Mexican authorities (Appellant's Memorandum, paragraph 12). [17] To my mind, the strongest counterweight to this argument of the Minister is the testimony of the Respondent to the effect that he did not ask for the permanent residence card and that it was given him in error. Of course, the RPD and the RAD face the same problem in that neither party had or have access to expertise on the real workings of the Mexican migration management system. For example, it might be the case that there are common practises or standard operating procedures which explain this situation but which are not known or have not been disclosed to this panel. Of course, in this case the burden is on the Respondent to show that he should not be 'excluded' with respect to a claim of protection against Kenya because of his status as a permanent resident of Mexico. [18] With respect to a credibility assessment of this allegation, I must conclude that there is some evidence of misrepresentation on the part of the Respondent. The Respondent secured the Canadian visa with a Mexican permanent resident card knowing that this card was 'illegal' according to the Respondent's arguments. The Respondent's explanation was that a Mexican official told him it was acceptable to use this card on temporary bases. Setting aside the clear problem that this type of administrative discretion smacks of bureaucratic ineptitude and disorder which implies that once given the decision is unlikely to be revisited, the Respondent did not disclose this 'mistake' to Canadian officials when he applied for an entry visa. [19] Of course, it would not be expedient to do so but then the Respondent does not disclose that the Mexican government considered him to be a permanent resident when he applied for Canada's protection (i.e., RPD Record, p. 139). The problem with this is that it makes no sense for the Respondent to travel to Canada on a permanent residence card that the Mexican government was in the process of invalidating, therefore, as set out in testimony, the alleged interaction of the Respondent and the Mexican official included a recognition that the alleged problem with the card would be fixed when the Respondent returned (Respondent's Memorandum, paragraph 15). In other words, the Respondent was aware that from the perspective of the Mexican government, the permanent resident card was genuine and he was recognized as a permanent resident until the error could be fixed. The fact is, therefore, the Respondent was a permanent resident of Mexico, which was not disclosed to the Canadian government in his refugee claim documentation. [20] Another credibility concern relates to fact that his marital status was not disclosed prior to his arrival in Canada. It is hard to imagine that after all of the Respondent's efforts to reunite with his wife and his own experience with travel that he would not be aware that the fact that he was married and that he and his wife would be traveling together from Mexico to Canada, was required information on a visa application. I note the Respondent has an explanation, that he did not have documentation to support the fact that he was married therefore he did not disclose this fact. I conclude that this explanation is not sufficient to set aside the credibility implications of the Respondent failing to disclose objectively important information to the Canadian government. [21] Finally, I note that in his RAD hearing the Respondent states that his objective prior to arrival in Canada was to stay permanently. I must conclude that it is hard to imagine, especially after having received a permanent resident card, that the Respondent and his wife, who could herself apply for permanent residence after two years of temporary residence, were unaware that they could have remained in Mexico as permanent residents. This is to say, prior to coming to Canada, the Respondent was aware that given their status in Mexico, they would not be forced to ever return to Kenya (Appellant's Record, p. 32). [22] This is also implicit in testimony before the RAD when the Respondent states that in a conversation with a Canadian friend he was talking about his problems in Mexico. The Respondent states that his friend did not say anything about Canada's refugee system but only told him to come to Canada and "I will explain what to do". The credibility concern is that this formulation involves the Respondent not wishing to remain in Mexico, not, as set out in the BOC, fearing return to Kenya. I must conclude, therefore, that there are credibility issues in the behavior and intentions of the Respondent that adversely impact his assumed credibility. [23] My conclusion would be that, based on a review of the evidence, I find the Minister's evidence to be determinative. The Respondent has permanent residence status in Mexico and this country, along with Kenya, becomes a country of reference for any claim of protection lodged in Canada. With respect to the allegation that this status was an error and that it will be reversed at some point, I find the Respondent's allegations related to how he received this card not credible on a balance of probability. I am persuaded by the Minster's argument that if this card were received in error, this card would not have been given the Respondent in the first place and the card would not have been recognized by the government of Mexico as valid when the Minister inquired as to its validity. The Respondent and his wife came to Canada to claim protection against return to Kenya at a time when they would very likely have been fully aware that they needed never return to Kenya. [24] If I were to stand back to see if there were something that might aid the Respondent in his arguments, I can find nothing. What I would note is that there are issues in the documentation which, if anything raise additional credibility concerns. For example, I note that the Respondent is alleging that he first entered Mexico in 2010 and received a six-month visa. According to the Respondent's BOC Narrative : 42. In XXXX XXXX, 2010 I returned to USA for four months. I was invited by my friend XXXX to come and run some races in Houston. I was issued a one-year visa so I knew I could not stay forever. I left after four months, after I received an invitation from my friend XXXX to go and run some races in Mexico. I was issued a six-month visa for Mexico, but after I arrived there I was able to renew it for another year. I arrived in Mexico on XXXX XXXX 2011 (RPD Record, p. 82). [25] There may be concerns with this formulation. The Respondent states that he received a six-month visa, then was able to "renew" this for "another year". The problem with this formulation is that these temporary resident visas appear to last for 1 year (RPD Record, p. 215) and the one 'non-immigrant' card provided as evidence, that of the second Extension (RPD Record, p. 211), has a beginning date of XXXX XXXX, 2012, which would be consistent with the alleged arrival date of XXXX XXXX, 2011. This raises the question of what were the dates of the first 'non-immigrant' card and what is the significance of this first 'six-month' visa ? [26] This in turn raises the question as to how the time between the Respondent's arrival in Mexico and the issuance of the first 'non-immigrant' card is factored into his eligibility for permanent residence in Mexico. In any case, I find that that the Appellant has sustained its case that the Respondent possesses permanent residence status in Mexico. Issue 2: Can the Allegations of a Risk of Return to Mexico be sustained? [27] I also note that the Respondent has alleged during the RAD hearing that he is at risk if he returns to Mexico. The Respondent notes two cases, the first of which occurred in early 2012 where the Respondent was robbed of his money. The Respondent goes on to set out that the police paid for a bus trip so that the Respondent could return home, however, the Respondent alleges a lack of follow up on the part of the police. No further problems related to this robbery were mentioned after the event itself. I must conclude that this incident must be seen as a generalized risk for all those who live in Mexico. Put simply, petty crime is very prevalent in many parts of Mexico. [28] The second allegation of risk in Mexico has the Respondent alleging that as a competitor or participant in a race, he was part of a group targeted by drug cartels. The Respondent alleges that this took place in XXXX or XXXX 2012 in XXXX state when a race to create "drug awareness" was attacked by drug cartel goons and some tents were destroyed. The Respondent alleges that the police did not intervene with the activities of the drug cartel goons. [29] I note that this evidence on a risk in Mexico was not raised in the Respondent's BOC narrative. I also note that there is nothing in the record to show that the Respondent would be at any risk now because of this event. I note that this event appears isolated and while living in Mexico the Respondent lived in XXXX de XXXX, which is in Mexico State (XXXX is an adjoining state). Again, the Respondent mentions no further problems or interactions related to drug cartel goons after the event itself. I must conclude that the Respondent has not established that there is a serious risk of persecution or a risk as understood in s. 97 at the hands of cartel drug goons if he returns to Mexico at this point and going forward. [30] Overall I must conclude that the Respondent has not meet his burden of establishing that he faces a serious possibility of persecution if he returns to Mexico or that he is at risk for a IRPA Section 97 reason on a balance of probability if he were to return to Mexico. CONCLUSION [31] Pursuant to ss. 111 (1) (b) of IRPA, the RAD sets aside the determination of the RPD and substitutes the determination that, in its opinion, should have been made, namely, that Mr. XXXX XXXX XXXX is a person referred to in Article 1E of the Refugee Convention. Therefore, he is not a Convention Refugee and is not a person in need of protection. [32] Therefore, the appeal is allowed. Stephen J. Gallagher Stephen J. Gallagher September 3, 2015 Date /ag 1 Huruglica v. M.C.I. (2014) FC 799. 2 Njeukam v. M.C.I. 2014 FC 859, paragraph 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) Disponible en français N° de dossier de la SAR/RAD File No.: MB5-00748 10