VC0-02384

RAD File / Dossier de la SAR : VC0-02384 VC0-02385 / VC0-02386 / VC0-02387 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 18, 2021 Date de la décision Panel I. Singh Tribunal Counsel for the persons who are the subject of the appeal Marianna Jasper Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Diana Gunadi Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Minister of Immigration, Refugees & Citizenship and Minister of Public Safety (Minister or Appellant) appeals a decision of the Refugee Protection Division (RPD), dated March 26, 2020, allowing the claims for refugee protection of XXXX XXXX XXXX (Principal Respondent), XXXX XXXX XXXX XXXX (Principal Respondent's son, XXXX), and XXXX XXXX XXXX and XXXX XXXX XXXX XXXX (Associate Respondents), citizens of Mexico. The Minister requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and substitute its own finding that the Respondents are not Convention refugees or persons in need of protection, or, refer the matter back to the RPD for redetermination. DECISION [2] The appeal is allowed. I send this matter back to the RPD to be redetermined. BACKGROUND [3] The Respondents alleged before the RPD that, upon return to Mexico, they fear harm by the Los Zetas gang due to their failure to pay an extortion amount and refusal to assist the gang in their drug trafficking. [4] The Respondents' applications for refugee protection were heard on March 10, 2020. By a decision of March 26, 2020, the RPD accepted the claims. The Respondents were found to be persons in need of protection under section 97 of the Immigration and Refugee Protection Act (IRPA). The Minister was not a participant at the Respondents' hearing. [5] The Minister provided a written Notice of Appeal on June 25, 20201 and the Appellant's Record2 on August 28, 2020. The Minister submits that the RPD erred by engaging in speculation and erred in its assessments regarding the Respondents' forward-looking risk, an Internal Flight Alternative (IFA) of Mexico City, and state protection. [6] In reply,3 the Respondents submit that the RPD did not err and request that the RAD confirm the decision of the RPD. They argue the RPD did not speculate but made appropriate and logical inferential findings based on the evidence. The Respondents also submit new evidence in reply to the Minister, consisting of threats received through Facebook by the Principal Respondent's son living in Mexico City, which demonstrate that the agents of harm have the ability and motivation to pursue them to Mexico City. They also argue the Minister's reliance on facts from an unrelated case undermines the legitimacy of the Minister's entire appeal. [7] In reply,4 the Minister concedes that facts from an unrelated case were included in error and withdraws those submissions. The Minister also argues the RPD's decision does not provide a logical link between the Respondents' evidence and rebutting the presumptions of an IFA and state protection. The Minister also raises issues with the Respondents' new evidence and submits that it has little weight on demonstrating a forward-looking risk or the motivation and means that the agents of persecution have in continuing to seek, find, and harm the Respondents. The Minister also submits new evidence consisting of excerpts of Facebook's privacy settings and argues that if the Principal Respondent's son is in hiding and in fear, it is not reflected on the protective measures he would take to protect his privacy, such as by limiting who can search for his profile. ROLE OF THE RAD [8] My role is to look at all the evidence and decide if the RPD made the correct decision.5 ANALYSIS OF THE MERITS OF THE APPEAL Admissibility of the new evidence submitted on appeal The new evidence submitted by both the Minister and the Respondents is accepted [9] While the IRPA6 sets out restrictions on new evidence submitted by the subject of an appeal, those restrictions do not apply to the Minister.7 The RAD may receive and base its decision on evidence that is adduced in the proceedings and that is considered credible or trustworthy in the circumstances.8 I find the Minister's new evidence9 is credible and trustworthy, on a balance of probabilities, and I therefore admit the Minister's new evidence. [10] Although I have credibility concerns with the Respondents' new evidence,10 as discussed below, I have admitted it pursuant to paragraph 110(5) of the IRPA, which stipulates that subsection (4) does not apply to evidence presented in response to the Minister's evidence. Issues [11] There are four issues in this appeal: a. Whether the Minister's reliance on facts from an unrelated case undermines the legitimacy of the Minister's entire appeal; b. Whether the RPD erred in its assessment of forward-looking risk; c. Whether the RPD erred in its assessment of an IFA of Mexico City; and d. Whether the RPD erred in its assessment of state protection. The legitimacy of the Minister's appeal is not undermined [12] Paragraph 13 of the Minister's memorandum11 cites facts from an unrelated case. The Respondents argue it is not possible to determine to what extent the Minister relied on those facts. The Minister has withdrawn the submissions made at paragraph 13.12 [13] I do not find that the legitimacy of the Minister's appeal is undermined. The Minister corrected the error, the facts included in error were very distinct from the Respondents' case, and it appears that the Respondents and the RAD have been able to determine the Minister's arguments. I do not find that the Minister's appeal is affected by the error. The RPD erred in its assessments of forward-looking risk and an IFA in Mexico City [14] In my determination, these issues are inextricably linked. The forward-looking risk is tied to the first prong of the test for a viable IFA. The RPD decision and the parties' arguments [15] The RPD found that the Respondents had established that they faced a forward-facing risk if they returned to Mexico, despite their evidence that the last time the Los Zetas asked about them was in XXXX 2018, when the Principal Respondent and his son XXXX, who the gang sought, were already in Canada. The RPD found that the objective evidence established that the Los Zetas are a unique breed of gang, preoccupied with organized violence, and that their use of retaliation and terror to maintain power and control over civilian populations is fundamental to their operations. The RPD found that, despite the passage of time, the Respondents would be targeted by the Los Zetas, on a balance of probabilities. The RPD also found the Los Zetas would have the motivation and means to seek the Respondents anywhere in Mexico, given the objective evidence that a large debt or personal vendetta could motivate a gang to track someone outside of their area and the objective evidence of their operations. [16] The Minister argues the RPD engaged in speculation by assuming that the Los Zetas would target the Respondents. Given the last attempt to locate the Respondents was in September 2018, the Minister submits that there does not appear to be any additional motivation to pursue them and that the RPD relied on generalized evidence of the Los Zetas to establish their motivation, without considering the specific evidence pertaining to the IFA of Mexico City. The Minister submits the objective evidence states that the Los Zetas are divided into smaller factions, there is no evidence that they would be interested in reaching out to other factions for assistance to target the Respondents, there is no evidence that suggests these individuals would have the continued desire to pursue the Respondents, nor is there evidence that the Principal Respondent's son, XXXX, had a relationship with the Los Zetas that was so significant that he would be considered a target deserving of expending the resources required to seek and find the Respondents in all parts of Mexico. The Minister also points out the objective evidence indicates the Los Zetas' main territory in Mexico is in Tamaulipas, Nuevo Leon, and Caohuila;13 although they have a presence in Yucatan,14 given the low crime rate,15 there is no evidence they have a vested interest in operating their drug trafficking business there, or in Mexico City; and Mexico City nor cities in Yucatan are listed as the small number of specific locations where violent crime has spread and is concentrated.16 The Minister also cites objective evidence that the Los Zetas are not known to have infiltrated governments outside of their areas of operation,17 and therefore, there is insufficient evidence the Respondents would come to the attention of authorities and the Los Zetas should they return to Mexico. The Minister also identified a credibility issue in the Principal Respondent's testimony with regard to when threats from the Los Zetas stopped, which the RPD did not clarify. [17] The Respondents argue the Minister's conclusion that the splintering of the Los Zetas means they no longer have the capacity or motivation to pursue their targets in all parts of Mexico ignores relevant portions of the National Documentation Package (NDP) quoted by the RPD with regard to the Los Zetas objectives;18 that gangs form strategic alliances with each other19 and use private investigators to carry out their objectives outside their traditional geographic area of operations;20 that it is inexpensive to have someone killed in Mexico;21 and the information with regard to how they track and monitor individuals using a communication network, informants, corrupt law enforcement agents, and their monitoring of social media feeds and use of mapping software.22 The Respondents also argue the Minister mischaracterizes legitimate inference as speculation and that the RPD did not speculate, but referenced the objective evidence and then arrived at inferential findings of fact in respect of the specific threat to the Respondents to find that the ability and motivation of the Los Zetas to pursue the Respondents were established on a balance of probabilities. With regard to the last threat being in XXXX 2018, the Respondents argue it is not speculative to conclude that a gang that maintains the credibility of its threats and the effectiveness of its extortion activities hinges on relentlessly pursuing and punishing those who resist, such as they did. [18] The Respondents also submit new evidence23 in response to the Minister's appeal. The new evidence consists of an affidavit from the Principal Respondent's son, XXXX, threats sent to his brother and sister-in-law, who lived near Mexico City, and flight ticket receipts. In his affidavit, XXXX explains that the Respondents are in regular contact with XXXX, who is XXXX brother. XXXX lives in hiding with his wife, XXXX, and daughter near Mexico City. They were meant to fly to Canada on XXXX XXXX XXXX 2020; however, XXXX travel authorization was cancelled and since that time they were forced to stay in hiding in Mexico City. XXXX states that about XXXX weeks prior to swearing his affidavit on XXXX XXXX XXXX 2020, he learned of threats XXXX had received, following which tickets were purchased for XXXX and his family to come to Canada. The threats were sent via Facebook, use very vulgar and violent language, and reference facts related to the Respondents. [19] In reply, the Minister submits the RPD was correct in making an inference between the Respondents' submissions and objective evidence; however, the RPD's decision does not provide a logical link between the Respondents' evidence and rebutting the presumption of an IFA. The RPD's decision does not make that connection, rather, the RPD rebuts this presumption on behalf of the Respondents, which is an error. The Minister submits that the RPD erred in utilizing general information from the NDP and applying it to rebut the presumption of an IFA. Although the RPD cites that refusing recruitment can motivate a cartel to track persons outside of their area of influence, this does not necessarily apply to all claimants who refuse cartel recruitment. The Minister submits this inference would affect the program integrity of the refugee system, in that it would cast a generalized statement that all young males potentially subject to gang recruitment would be a Convention refugee and at risk in all parts of Mexico. [20] With respect to the new evidence, the Minister submits it has little weight on demonstrating a forward-looking risk or the motivation and means that the agents of persecution have in continuing to seek, find, and harm the Respondents, due to the following reasons. The messages lack a time and date stamp to verify when they were sent, which differs from the WhatsApp messages submitted at the RPD hearing. The messages also do not include the name of the Facebook profile they were sent to. Moreover, the Minister filed evidence24 about Facebook's privacy settings and submits that if XXXX and his family are in hiding and in fear, it is not reflected on the protective measures they would take to protect their privacy, such as by limiting who can search for his profile. Alternatively, the Minister submits that if one does not want to be found, social media accounts are not mandatory. The RAD's assessment [21] I have carefully considered the submissions from the Minister and Respondents, and based on my independent assessment of the record, I find the RPD erred in its assessments of forward-looking risk and an IFA in Mexico City. [22] Putting aside the Respondents' new evidence for a moment, I do not find that the RPD correctly considered that the Respondents had not faced any threats since XXXX 2018. It is in this part of the analysis that I find the RPD erred by speculating and generalizing as to the motivations of the Los Zetas in pursuing the Respondents. The RPD concluded the Respondents would be targeted by the Los Zetas despite the passage of time, by relying on objective evidence, but failed to address circumstances particular to the Respondents, such as how and why they would be detected should they return to Mexico and how and why they would be located in Mexico City, all in the context of there having been no communication from the Los Zetas since XXXX 2018. In my determination, the issue about motivation is not whether the Los Zetas have the means to pursue the Respondents. The issue is whether they have the motivation to use the means they have access to in order to pursue these Respondents, in spite of not having exercised those means since XXXX 2018. And to this, I find the RPD failed to provide a logical link between the Respondents' evidence and why the first prong of the test for a viable IFA is rebutted. [23] If the Los Zetas depend on "relentlessly pursuing" those who resist their demands, it does not accord that the Respondents faced no threats after XXXX 2018. I note that the Principal Respondent and his son XXXX, who were the main targets of the threats, left Mexico on XXXX XXXX, 2018.25 The other two Respondents left on XXXX XXXX, 2019 and XXXX XXXX XXXX 2019, though restricted their activities outside of the home.26 However, the Principal Respondent's father lives in Merida and was living in Merida when he received a call from the Los Zetas in XXXX 2018 asking about the Respondents' whereabouts.27 Moreover, XXXX and his family lived in Merida until XXXX XXXX XXXX 2020.28 Given the Los Zetas already had a way of reaching the Principal Respondent's father, given their objectives and focus on brutal violence, and given the Respondents did not allege any further incidents against their family members since XXXX 2018, from this, the evidence suggests that the agents of harm were not interested in pursuing the Respondents or their family members. [24] To put it more simply, what evidence is there that the Los Zetas would track the Respondents now (or even at the time of the RPD hearing), and especially, after silence since XXXX 2018? I find the objective evidence is insufficient to answer this question because the answer requires an assessment of the Respondents' circumstances, which means the answer has to come from them as they bear the onus to rebut the presumption. [25] As argued by the Minister, there is no evidence that XXXX relationship with the Los Zetas was so significant as to make him a target worthy of pursuing to Mexico City. Just because the objective evidence establishes the Los Zetas are capable of doing this, does not mean they will do this, on a balance of probabilities, to the Respondents now (or even at the time of the RPD hearing), and especially, after silence since XXXX 2018. [26] Despite my analysis above, I acknowledge it fails to consider the new evidence of threats. I turn to that analysis now. [27] The Respondents submit that the new evidence of the Facebook threats is conclusive on the issue of IFA as they demonstrate both the ability and motivation of the Los Zetas to pursue the Respondents to Mexico City. [28] I disagree that the threats, on their face, are conclusive on the issue of an IFA in Mexico City, on a balance of probabilities. I have the following credibility concerns with the Respondents' new evidence. As noted by the Minister, there is no information as to the date and time of the messages. I can see that they show "XXXX." and provide times from XXXX XXXX XXXXA.M. to XXXX XXXX XXXXA.M.;29 however, I do not know which XXXX they refer to, nor does XXXX affidavit provide clarity on this point, as he only indicates XXXX told him about the threats about two weeks prior to the swearing of the affidavit.30 The evidence also does not include information about to whom the threats were sent. Further, the Minister raises a valid argument with respect to Facebook's privacy settings and the apparent inconsistency that if XXXX and his family are in hiding, it is not reflected on the protective measures they would take to protect their privacy, such as by limiting who can search for their profiles on Facebook, or by not having social media accounts at all. [29] I find the timing of the threats is also suspiciously convenient. The Minister's Notice of Appeal is dated June 25, 2020. In his affidavit, XXXX states that the Respondents "are in regular contact with XXXX..." and that XXXX weeks earlier XXXX had told them "that he had just received threats..." [emphasis added].31 Given these details, it appears the threats were received after the Minister appealed the decision. Further, given that there had been no contact from the Los Zetas since XXXX 2018, I find their sudden reappearance nearly two years later is suspiciously convenient. [30] I find that I am unable to determine whether these threats are credible and whether the Respondents have an IFA in Mexico City without holding a hearing to question them further on these matters. However, I do not find that I have the jurisdiction to hold a hearing, given the requirements of subsection 110(6) of the IRPA.32 Specifically, if the evidence of the new threats is accepted as credible, it would not justify allowing the claims, given that state protection is still an issue in this appeal, which I discuss below. [31] Although the issue of credibility has not directly been argued as an issue in this appeal, I note that the Minister raised a credibility issue with regard to when the threats from the Los Zetas stopped, which was not clarified by the RPD,33 nor has it been challenged by the Respondents. I find that the presence of this and two other credibility concerns further hinders my ability to provide a final determination of these claims. I have noticed two other significant credibility concerns from the Principal Respondent's testimony. In the first, when initially asked how he knew the Los Zetas were responsible for the threats, he testified "it's the only organization [that works] in that manner... that's how I knew."34 Later in the hearing, the RPD clarified its concerns to the Respondents' counsel. The RPD stated "it's not clear to me who the agent of harm is ... I appreciate that the claimants believe that it is the Los Zetas gang, but ... there's no evidence that they've identified themselves as such ... if there is some kind of concrete evidence that can point to Los Zetas as the agents of harm, I think that would be helpful..."35 Later in the hearing, when asked again how he was sure it was the Los Zetas group that targeted them, the Principal Respondent testified that the Los Zetas identified themselves as such on the phone.36 Finally, when asked to explain the inconsistency with his earlier testimony, namely, why he had not testified initially that the callers identified themselves on the phone, he testified "because in the moment, she made a question, she made the question with regards to the evidence she had in the moment."37 The RPD then proceeded to confirm that the Los Zetas identified themselves on the phone. It is not clear to me why the RPD accepted the Principal Respondent's explanation for the inconsistency on such a key issue. The second credibility concern is, what appears to me as, exaggeration in testimony. When asked about the viability of Mexico City as an IFA, the Principal Respondent testified the Los Zetas "control absolutely every state."38 As confirmed by the objective evidence,39 this is objectively unfounded. State protection [32] With regard to state protection, I note that the failure to approach police for protection is sometimes fatal to a claim for refugee protection. However, it is not a strict legal requirement. As the jurisprudence indicates, the fact of whether a claimant sought state protection goes to whether they have provided the clear and convincing evidence needed to displace the presumption of state protection.40 The Respondents are only required to show that they took all reasonable steps in the circumstances to seek protection, taking into account the context of the country of origin, the steps taken, and their interactions with the authorities.41 [33] However, I find that I am unable to make a determination on the issue of state protection. In my view, credibility and state protection are linked. The RPD found the Respondents to be credible, credibility is not directly under appeal, the Minister and the RAD have identified credibility issues, and these issues touch several aspects of the claims. Moreover, the record is silent on whether the Respondents ever had interactions with the authorities in Mexico prior to the incidents with the Los Zetas. As a result, I find that I am unable to determine the issue of state protection without holding a hearing to question the Respondents further, which I do not have the jurisdiction to do. [34] For these reasons, I set aside the RPD's determination and refer the matter back to the RPD for redetermination by a differently constituted panel. CONCLUSION [35] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act, the RAD refers the matter back to the RPD for redetermination by a differently constituted panel. (signed) Inderpreet K. Singh I. Singh February 18, 2021 Date 1 Exhibit M-1, Minister's Notice of Appeal, June 25, 2020. 2 Exhibit M-2, Appellant's Record, August 28, 2020. 3 Exhibit P-1, Respondents' Record, September 11, 2020. 4 Exhibit M-3, Appellant's Reply Record, October 2, 2020. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII), [2016] 4 FCR 157; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 (CanLII), [2019] 2 FCR 597. 6 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 7 Ibid., at subsections 110(3)-(4), 171(a.4)-(a.5). 8 Ibid., at subsection 171(a.3). 9 Exhibit M-3, Appellant's Reply Record, pp. 7-13. 10 Exhibit P-1, Respondents' Record, pp. 2-35. 11 Exhibit M-2, Appellant's Record, p. 9. 12 Exhibit M-3, Appellant's Reply Record, p. 3. 13 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Mexico (February 28, 2020), Item 7.15: ?Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltrán Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017-August 2019), Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) MEX106302.E, 5 August 2019. 14 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Mexico (February 28, 2020), Item 7.2: ?Mexico: Organized Crime and Drug Trafficking Organizations, United States. Congressional Research Service, 20 December 2019. 15 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Mexico (February 28, 2020), Item 7.14: Mexico. 2019 Crime and Safety Report: Mérida, United States. Overseas Security Advisory Council, 3 April 2019. 16 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Mexico (February 28, 2020), Item 7.9: Organized Crime and Violence in Mexico. Analysis Through 2018, University of San Diego. Justice in Mexico Project, April 2019. 17 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Mexico (February 28, 2020), Item 7.15, supra, footnote 13. 18 Ibid. 19 Ibid. 20 Ibid. 21 Ibid. 22 Ibid. 23 Exhibit P-1, Respondents' Record, pp. 2-35. 24 Exhibit M-3, Appellant's Reply Record, pp. 7-13. 25 Exhibit RPD-1, RPD Record, p. 8, RPD Reasons, p. 5. 26 Ibid. 27 Exhibit RPD-1, RPD Record, p. 9, RPD Reasons, p. 6. 28 Transcript of (March 10, 2020) RPD Hearing, at p. 32. 29 Exhibit P-1, Respondents' Record, pp. 4-5. 30 Ibid., p. 3. 31 Ibid., pp. 2-3. 32 Subsection 110(6), IRPA, S.C. 2001, c. 27, as amended. 33 Exhibit M-2, Appellant's Record, p. 11; Transcript of (March 10, 2020) RPD Hearing, at pp. 22, 29-30. 34 Transcript of (March 10, 2020) RPD Hearing, at p. 19. 35 Ibid., p. 35. 36 Ibid., p. 37. 37 Ibid., p. 47. 38 Ibid., p. 33. 39 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Mexico (February 28, 2020), Item 7.2, supra, footnote 14. 40 Aurelien v. Canada (Citizenship and Immigration), 2013 FC 707 (CanLII), at paras. 7-9; Majoros v. Canada (Citizenship and Immigration), 2013 FC 421 (CanLII), at paras. 10-11; see also Muntyan v. Canada (Citizenship and Immigration), 2013 FC 422 (CanLII), at paras. 9-10. 41 Peralta v. Canada (Minister of Citizenship and Immigration), 2002 FCT 989 (CanLII), at para. 18. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-02384 VC0-02385 / VC0-02386 / VC0-02387 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français