TC2-36307

RAD File / Dossier de la SAR : TC2-36307 TC2-36308 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Date of decision March 28, 2023 Date de la décision Panel C. Prowse Tribunal Counsel for the persons who are the subject of the appeal N/A 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 OVERVIEW [1] I dismiss the appeal of XXXX XXXX XXXX (Principal Appellant) and XXXX XXXX XXXX (Associate Appellant), citizens of Mexico. [2] The RPD was correct in finding that the Appellants are neither Convention1 refugees nor persons in need of protection. [3] The following is a brief (and non-exhaustive) summary of the Appellants' allegations in their Basis of Claim (BOC) forms: * The Appellants allege that they fear the Cartel de Jalisco Generacion (CJNG), who are targeting them because of the PA's refusal to transport/sell drugs for the cartel. * The Principal Appellant (PA) alleges that on XXXX XXXX XXXX 2017, two members of the cartel ("K" and "R") asked him to transport cocaine from Pueblo to Mexico City. The PA indicated that he would think about it. He was threatened with torture and murder if he did not comply. * The Associate Appellant (AA) was the victim of an attempted abduction on XXXX XXXX, 2017. Shortly afterwards, the PA received an anonymous phone call in which the caller threatened the AA's life. * The Appellants traveled to Canada in XXXX 2017 and returned to Mexico five months later, in XXXX 2018. They lived with the AA's parents. * On XXXX XXXX, 2018, the PA was hit by a vehicle while riding his motorcycle. He was abducted at gunpoint, blindfolded, and put into the vehicle, where he was beaten and threatened by assailants, among them "K." The PA's father received a phone call demanding XXXX pesos per month or the PA would be killed. His captors released him in a rural area, where he was discovered by a local resident. The PA's father picked him up and took him to a medical clinic, where he received treatment. * The Appellants returned to Canada in XXXX 2018 and claimed refugee protection in or around August 2020. * The PA's father received threatening phone calls on the PA's phone after his departure. [4] The Appellants were unrepresented during the RPD proceeding, and are unrepresented in their appeal to the RAD. [5] The Minister of IRCC intervened in the RPD proceeding on the basis of credibility, by filing of documents only. [6] The determinative issues for the RPD were credibility, and an Internal Flight Alternative (IFA) in the city of Merida, Yucatan, or Campeche, Campeche. [7] Overall, the RPD found that the PA's testimony was not credible, due to omissions and contradictions in his testimony and evidence that he could not credibly explain. As the AA relied on the PA's allegations and testimony for her claim, the RPD found that these negative credibility findings extended to her claim. Notwithstanding this, the RPD accepted the AA's testimony about her abduction attempt in XXXX 2017. [8] In the alternative, and after accepting the AA's testimony about her abduction attempt, the RPD found that the Appellants had a viable IFA in Mexico, with respect to the Jalisco New Generation Cartel (CJNG). The RPD found that even if the evidence establishes that the agents of harm have the means to pursue them to the IFA, the Appellants failed to show that they possess the motivation. The RPD found that the Appellants failed to establish that the IFA would be objectively unreasonable in all the circumstances. [9] The Appellants argue that the RPD's decision should be set aside because the CJNG are present everywhere in Mexico, including the IFA location, and they have both the means and the motivation to find and harm them. They also submit that the RPD should have accepted the PA's testimony as credible under the circumstances. [10] I find that there were significant credibility issues in the PA's testimony. Although I do not agree with or rely on all of the RPD's negative credibility findings, I find that the RPD was correct to determine that the PA's allegation that he was abducted by on XXXX XXXX, 2018, was not credible. Nor do I accept as credible the PA's allegations about subsequent events arising from this alleged abduction. I accept the Appellants' testimony about events that occurred in XXXX 2017. [11] I find that the Appellants have a viable IFA in Merida, Yucatan. The RPD Decision is correct. NEW EVIDENCE [12] Subsection 110(4) of the Immigration and Refugee Protection Act (IRPA)2 states that an appellant may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection. It is for the appellant to provide full and detailed submissions in their memorandum about how any proposed new evidence meets the requirements of subsection 110(4) and how that evidence relates to them. [13] If the new evidence meets the requirements in subsection 110(4), then the Refugee Appeal Division (RAD) must also apply the adapted Raza factors endorsed in Singh. In Singh, the Federal Court of Appeal held that the RAD should assess the admissibility of the new evidence for its credibility, relevance, and newness.3 [14] The list of new evidence submitted with the appeal is as follows: a) Declaration of XXXX XXXX XXXX, dated XXXX XXXX, 2022.4 b) Declaration of XXXX XXXX XXXX, dated XXXX XXXX, 2022.5 c) Declaration of XXXX XXXX XXXX, dated XXXX XXXX, 20236. d) Declaration of XXXX XXXX XXXX XXXX, dated XXXX XXXX, 2022.7 e) Declaration of XXXX XXXX, dated XXXX XXXX XXXX 2022.8 f) Declaration of XXXX XXXX XXXX XXXX, dated XXXX XXXX, 2022.9 g) Declaration of XXXX XXXX XXXX XXXX, dated XXXX XXXX, 2022.10 h) Death Certificate of XXXX XXXX XXXX XXXX XXXX, registration date XXXX XXXX, 2021. 11 i) Affidavit 2nd CAPTAIN XXXX XXXX XXXX XXXX, dated XXXX XXXX, 2023.12 j) Affidavit 1st OFFICER XXXX XXXX XXXX, dated XXXX XXXX, 2022.13 k) News Article: "Curious dogs unearth body of missing boy, in Morelos", El Grafico, dated March 6, 2019.14 l) News Article: "Man shot dead in Jiutepec", diariodemorelos.com, dated August 19, 2022.15 m) News Article: "The drug empire: the CJNG only needs 4 states to dominate all of Mexico." Infobae, dated August 3, 2022.16 n) News Article: "Drug map in Mexico: where the main cartels operate,according to the US Congress", infobae, dated June 16, 2022.17 o) Six photos (one dated XXXX XXXX, 2014, other undated).18 p) Medical Report XXXX XXXX XXXX XXXX. XXXX XXXX XXXX 2023.19 The following evidence is accepted Affidavit of military officer and affidavit of police officer (items i) and j)) [15] I find that these affidavits meet the requirements of subsection 110(4). On their surface they contain contemporary information about the operations of the CJNG in Mexico and are relevant to the issue of IFA since they discuss the capabilities of the cartel with respect to tracking their targets. I have no reason to question their credibility or provenance. [16] Therefore, I admit these documents. The remaining evidence is rejected Declarations of Appellants (items a) and c)) [17] The Appellants have each responded to the RPD's findings by providing a written declaration. The declarations repeat some of their principal allegations and include explanations and submissions concerning the alleged errors in the RPD Decision. The content of these declarations does not constitute new evidence under subsection 110(4) of the IRPA and should be considered part of the Appeal Memorandum as required by the RAD Rules.20 Notwithstanding this procedural oversight by the Appellants, I have taken into consideration these declarations as submissions in considering the Appellants' arguments on appeal. Declaration of Principal Appellant's father (item b)) [18] I find that this written statement by the PA's father does not meet the requirements of subsection 110(4) of the IRPA. Although it is dated after the Appellants' rejection by the RPD, it exclusively concerns events central to their claim which took place before the RPD Decision. The Appellants have not demonstrated that this evidence was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented it at the time of the rejection. [19] The PA's father previously provided a declaration for the RPD proceeding. The new declaration addresses inconsistencies and omissions raised by the RPD during the hearing with respect to his previous letter, and the allegations mentioned therein. For example, the author corrects his previous declaration by stating that the cartel increased their monthly extortion amounts that they demanded from him, in line with the PA's testimony. The declaration also provides new information about threats that the PA's father allegedly received at the time, which was not provided by the Appellants. For example, he writes that he had to move to another property and was forced to stop his business operations because of the threats he received. [20] This information is clearly relevant to the Appellants' claim, and the Appellants have not provided a satisfactory explanation for failing to provide it at the time of their rejection by the RPD. The only explanation provided by the author is that he did not tell the PA about the increasing extortion amounts because he was concerned about his "emotional health." I find that this explanation is not credible. The PA's father wrote a detailed letter of support for the RPD proceeding and was instrumental in the Appellants' efforts to escape harm in Mexico. It simply cannot be believed that he would withhold details from his original letter addressed to the Immigration and Refugee Board (Board) that would support a positive outcome of their claim. There is no question that the PA's father is concerned about his son's health and well-being, and I find that this would reasonably entail providing the strongest possible letter of support. Despite allegedly keeping important information from the PA, there is no indication in the PA's father's original letter that he possessed other relevant details or could be contacted by the Board for additional information. No contact information was provided on his original letter. Also, the PA knew about the alleged escalating extortion from the cartel, and yet he testified that he did not ask his father to amend his letter or provide an update. No explanation has been provided for the failure of the PA's father to communicate other important facts that arose before the RPD rejection. Overall, I find that this more likely represents an attempt to 'fix' the credibility or other issues in the PA's testimony on appeal. [21] Therefore, I do not admit this evidence. Declarations from friends (items d) through g)) [22] I find that these written declarations from various friends and/or acquaintances of the PA do not meet the requirements of subsection 110(4) of the IRPA. Although they are dated after the Appellants' rejection by the RPD, they concern events which took place before the RPD Decision. For the most part, the declarations repeat some of the Appellants' allegations or refer to other events that occurred prior to the RPD Decision. The Appellants have not demonstrated that this evidence was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented it at the time of the rejection. [23] In some cases, it is unclear exactly when an event recounted in these documents took place, such the funeral of a mutual acquaintance of the PA's who worked for the CJNG and was killed by them in XXXX 2022 (item e)) or the closure of a friend's business because of extortion and threats from the CJNG (item f)). The declaration from a former "federal legislator" (item g)) also includes a general sentence about the heightened power and connections of "K" "nowadays."21 [24] As already noted, it is for the Appellants to provide full and detailed submissions about how the evidence meets the requirements of subsection 110(4). They have not clearly demonstrated that this information arose after the rejection of their claim. Nor have they demonstrated or provided any explanation why this evidence was not reasonably available, or why they could not reasonably have provided this evidence before the RPD Decision. [25] Moreover, even if I were to accept that the above information arose after the rejection of the Appellants' claim, the Appellants have not demonstrated that it is sufficiently relevant or new to be admitted into evidence. It is not clear that these other friends, acquaintances, or contacts are similarly situated persons, or that the information is probative with respect to the determinative issues in the claim, namely credibility, and the motivation of the CJNG to pursue the Appellants to the IFA. [26] Therefore, I do not admit this evidence. Death Certificate (item h)) [27] I find that the death certificate of the AA's mother does not meet the requirements of subsection 110(4) of the IRPA. The document is dated XXXX XXXX, 2021. The Appellants allege that the illness of the AA's mother is one of the reasons they returned to Mexico in 2018. The Appellants have not demonstrated that this evidence arose after their rejection, that it was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented it at the time of the rejection. [28] Moreover, I find that that this document is not sufficiently relevant or new to be admissible. I accept the death of the AA's mother. This fact was not questioned by the RPD. Even if I admitted the document, it would be incapable of proving and disproving any facts that are relevant to the outcome of the claim. I do not rely on the RPD's negative finding with respect to re-availment. [29] Therefore, I do not admit his evidence. News articles (items l) through n)) [30] These news articles concern the CJNG and crimes allegedly committed by the cartel, matters that go to the core of the Appellants' claim. The articles pre-date the RPD Decision by several months to years. The Appellants have not provided any explanation or demonstrated that this evidence arose after their rejection, that it was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented it at the time of the rejection. [31] I note that the RPD informally allowed the PA to present other internet news articles during the RPD hearing, even though they did not comply with the RPD Rules for disclosure and use of documents. Notwithstanding this, the Appellants did not provide this evidence at the time of the RPD Decision. [32] Therefore, I do not admit this evidence. Photos (item o) [33] These photos are undated, except for one photo, which is from 2014. The remaining photos appear to pre-date the RPD rejection, since they purportedly show two individuals who died before the RPD rejection. No explanation has been provided for the photos, and the Appellants have not demonstrated that this evidence arose after their rejection, that it was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented it at the time of the rejection. [34] I find that even if I were to admit these photos, they would not have any probative value with respect to the determinative issues in this claim. At best they are proof of a social connection between the Appellants and other victims of the CJNG who are not clearly similarly situated persons. [35] Therefore, I do not admit these photos. Medical report and letter (item p) [36] This document is purportedly a corrected medical report for the PA issued by the XXXX XXXX XXXX XXXX medical clinic describing his symptoms and treatment following his admission to the clinic after his abduction on XXXX XXXX, 2018. It is accompanied by a covering letter by the doctor who issued the corrected medical report. Both documents are dated XXXX XXXX, 2023. [37] I find that this document does not meet the requirements of subsection 110(4). Although I accept that this document appears to have arisen after the rejection of the Appellants' claim, I find that it is not sufficiently credible or trustworthy to be admissible.22 [38] The jurisprudence supports that suspicious and fortuitous timing with respect to new evidence may, in limited circumstances, support a finding that it is not credible or trustworthy.23 [39] Firstly, I find that it is an extraordinary coincidence that the PA has provided a medical report on appeal to the RAD that fixes all the inconsistencies and omissions in the original document identified by the RPD in its decision. I note the original medical report was issued nearly two years before the RPD hearing, and that the PA demonstrated that he was knowledgeable of the contents of this document.24 There is no indication that he sought to have the document corrected until after the RPD's negative decision which enumerates the discrepancies between his testimony and supporting documentation. [40] Secondly, even though the new medical report is purportedly a true record of what occurred, it is still inconsistent with the PA's testimony. The document states that the PA was "assessed and discharged from the hospital after 12 hours" however the PA testified that he attended a medical clinic (never a hospital) and that he was there for a total of 5 or 6 hours.25 There is no indication in the PA's BOC or testimony that he was kept overnight, and released the next day, as the new medical report states. [41] Thirdly, the explanation in the covering letter for the inaccuracies in the original document, conflicts with the content of the original medical report. The letter states that "the on-call physician did not have access to the patient's record because he was only covering my shift and my duties due to a health problem affecting me at the time. The physician in charge provided a medical prescription which contained information that was collected from the oral testimony of healthcare staff assisting the patient."26 However, the original medical report is purportedly certified by another medical doctor from the clinic on the basis of "the content of the clinical file." The report is signed by the authoring doctor and bears the stamp of the medical clinic. It is not a prescription but a detailed medical report describing the details of PA's symptoms and treatment. [42] Moreover, the PA testified that his father took him to a medical clinic that he "trusts" where a friend of his works as a doctor and often treats their family members.27 Although the PA was questioned in detail by the RPD about his medical treatment at the clinic and the medical report, he never indicated that he was treated by another physician who was not knowledgeable of his clinical file, as the covering letter suggests. As the PA visited this medical clinic in particular because of access to a doctor who was a trusted family friend, he would likely know if that preferred doctor was unavailable. [43] For these reasons, I find that these documents are not sufficiently credible or trustworthy to be admissible, and I do not admit them. Summary of new evidence findings [44] The Federal Court has reiterated that "[a] RAD appeal is not a second chance to submit evidence to answer weaknesses identified by the RPD."28 For the most part, the Appellants have attempted to reinforce their claim by disclosing evidence on appeal that arose before the RPD Decision, and which they reasonably could and should have provided at the time of their rejection. Otherwise, the Appellants have provided evidence that is not sufficiently credible or trustworthy, such as the updated medical report, which appears designed to 'fix' credibility or other issues identified by the RPD in its decision. [45] The Appellants argue that their new evidence should be admitted because they were not expecting their claim to be rejected. This is not a valid reason for accepting documents under subsection 110(4). The onus is on the claimants to prove their claim and provide the RPD with acceptable documents establishing the elements of their claim.29 [46] I note that the Appellants do not have legal representation on appeal, however I find that this alone is not a sufficient reason to admit the above documents. There is no discretion to waive the requirements of subsection 110(4) of the IRPA. ORAL HEARING [47] The Appellants have not requested an oral hearing. My jurisdiction to hold an oral hearing is limited to situations where admissible new evidence raises a serious issue of credibility; is central to the decision; and determinative of the claim.30 [48] The only admissible new evidence in this claim, the affidavits of a military and police officer, do not raise a serious issue of credibility, and are not determinative of the claim. [49] For these reasons, I will not hold an oral hearing. ANALYSIS [50] My role is to look at all the evidence and decide if the RPD made the correct decision after conducting an independent assessment.31 [51] The determinative issues in this appeal are credibility and an IFA in Merida, Yucatan. [52] I note that the RPD conducted the hearing in a manner that was fair and considerate of the fact that the Appellants were unrepresented. At the beginning of the hearing, the RPD Panel explained the process and test to be met in detail, using plain language. The Panel exercised flexibility in considering evidence from the Appellants, allowing late disclosure of documents. The Appellants have not raised any issues on appeal that suggest that there was a violation of procedural fairness or natural justice in hearing their claim. The claim does not have a nexus to the Refugee Convention [53] The RPD found that the Appellants were not targeted on the basis of any of the five Convention grounds. It determined that they were victims of crime. Therefore, the RPD concluded that the Appellant did not have a have a nexus to a Convention ground, and that he was not a Convention refugee. Accordingly, the RPD examined the claim under subsection 97(1) of the IRPA only. [54] The Appellants do not contest this finding. [55] I agree with the RPD. Persecution must be distinguished from being a victim of a criminal act or a personal vendetta, which is the scenario in this case. There is no evidence that the Appellants were targeted by any of the agents of harm because of a Convention ground. I agree with the RPD that the Appellant are not Convention refugees. The RPD was correct to assess the claim solely under subsection 97(1) of the IRPA. There is insufficient credible evidence that the Appellants were targeted by the agents of harm after XXXX 2017 [56] When a claimant swears that certain facts are true, this creates a presumption that they are true, unless there is valid reason to doubt their truthfulness.32 However, this presumption is not unchallengeable and may be rebutted by the claimant's lack of credibility.33 [57] The RPD found that there were inconsistencies and omissions in the PA's testimony and evidence concerning his alleged abduction on XXXX XXXX, 2018, and that the Appellants did not have a reasonable explanation for returning from Canada to the same city in Mexico in XXXX 2018 where they had allegedly been targeted by the CJNG as 'military targets'. Overall, the RPD found the PA "not credible as to what occurred in Mexico"34 though it accepted that the AA was targeted and assaulted in XXXX 2017. [58] While the Board may make a general finding of a lack of credibility, where a claimant is "...so lacking in credibility that it concludes that there is no credible evidence relevant to his claim."35 I find that the RPD's general finding of a lack of credibility is not sufficiently transparent or intelligible in this case. [59] However, for the following reasons, I find that the RPD was correct to determine that the PA's allegation about his abduction was not credible. Although the RPD was not justified in making an overall finding of a lack of credibility on this basis, I find that there is insufficient credible evidence to establish that the Appellants (or their family members) were targeted by the CJNG after XXXX 2017. [60] The PA testified that after he was hit by a vehicle on XXXX XXXX, 2018, he was abducted and taken to what he believes was a CJNG "safe house" for two days. I agree with the RPD that the PA failed to mention in his BOC that he heard other people being tortured and begging to be released in other rooms. The RPD was correct to reject the PA's explanation that he wanted to keep his narrative brief, noting that his narrative is six pages, and that he would not reasonably fail to mention the material fact that he was kept in a cartel "safe house" with other persons who were also being tortured. [61] In my independent assessment, there are additional material inconsistencies between the PA's testimony and his BOC with respect to his abduction. For example, the PA states in his BOC that he recognized the voice of "K" (the alleged principal agent of harm) who entered the van after he was abducted and threatened him. However, he gave no indication during his oral testimony that "K" was among the persons who were in the vehicle with him, or that he recognized any voices until after he was in the house.36 All in all, the PA provided a significantly different picture of his abduction and detention during oral testimony compared to his detailed BOC narrative. [62] The PA testified that after his release by the CJNG, the cartel continued to call his father and made escalating demands for monthly payment up to XXXX XXXX XXXX pesos to avoid further harm to the PA. However, this is inconsistent with the letter from the PA's father, which merely states that the cartel asked him to pay XXXX XXXX XXXX pesos per month. When the RPD put this to the PA, he explained that he had no idea why his father would provide different information. [63] In my independent assessment, the more significant inconsistency is between the PA's BOC narrative, which gives no indication that the extortion amount increased from XXXX XXXX XXXX pesos despite mentioning the repeated calls to his father, and his testimony, as summarized above. I find that this is a material inconsistency or omission, since the PA's testimony suggests that the demands and interest from the cartel was increasing over time, and that he considered this to be a sign of how motivated the agents of harm were to target him.37 If this is true, the PA should reasonably have included this important detail in his BOC narrative. [64] The PA provided a medical report from the clinic where he allegedly received treatment following his release from his captors. The report states that the PA was admitted and released on XXXX XXXX XXXX 2018. It also states that PA's injuries included a wound caused by a canine, and that the PA was given a rabies shot as part of his treatment. However, as the RPD correctly noted, this does not match the PA's account of this incident. The PA testified that he was released by the CJNG the following day, on XXXX XXXX, 2018. He alleges that he was treated for numerous cigarette burns, which are not mentioned in the report, and he never indicated that a dog was involved in his assault. When the RPD put this to the PA, he replied that the report contains mistakes and that it was written two years after the incident. The RPD was correct to reject this explanation on the grounds that it was purportedly signed by a doctor who certified the content of the clinical file. Moreover, as noted in the new evidence section, the PA was aware of the contents of this report, which was issued roughly two years before the RPD hearing, and yet there is no evidence that he attempted to have it corrected until after he was rejected by the RPD. Therefore, the RPD correctly determined that either the report is fraudulent, or the injury in question did not happen in the manner or for the reasons alleged by the PA. Either way, the PA's credibility is diminished with respect to his allegation of being abducted. [65] Furthermore, there is an additional inconsistency between the PA's testimony and his BOC narrative. The PA testified that the same day he was receiving medical treatment at the clinic, the agents of harm got in touch with his father to demand monthly extortion payments.38 However, his BOC narrative states that this happened later, in the "following days." [66] Although the RPD did not refer in its reasons to some of these credibility concerns, I find that this does not constitute a "new issue" as per Ching.39 While the relevant case law on this matter is mixed, I find that there is support for my position that this is not a new issue. [67] I note that there is not an issue of procedural fairness when the RAD finds an additional basis to question the applicant's credibility using the evidentiary record before the RPD.40 The RAD can make independent credibility findings, without putting them to the applicant and giving him an opportunity to make submissions; and the RAD may independently assess the documentary evidence or make credibility findings.41 [68] The RPD identified credibility as an issue at the beginning of the RPD hearing, and it remained a live issue throughout the proceeding. The Appellants have put credibility squarely in issue on appeal, arguing that the RPD erred by finding that the PA's oral testimony was not credible. [69] Numerous other cases stand for the proposition that the RAD may make further findings on credibility, which was at issue before the RPD, and that arise from the evidentiary record where the Appellant's credibility raised as a ground of appeal.42 [70] I find that this case should be distinguished from Abraha v. Canada (Citizenship and Immigration), 2022 FC 100, where the Court found that the RAD breached procedural fairness by failing to give the Appellants an opportunity to respond to its concerns. In Abraha, the RAD made new and distinct negative credibility findings on several documents that were before the RPD. However, the RPD did not consider these documents as part of its credibility analysis, or in most cases, even refer to the documents. It did not question the claimant about some of the documents that the RAD subsequently found to be inauthentic. That is not the case here. The RPD questioned the PA in detail about his alleged abduction and his supporting evidence, including his purported medical report. The principal credibility issues that led to my negative finding were put to the Appellants during the RPD hearing. [71] The Appellants have not specifically contested any of the RPD's credibility findings. They submit that the PA was unable to express himself well or correctly during the hearing, which may have led to a misunderstanding. The PA states that he was very nervous and did not know how to deal with the situation. [72] I understand that the RPD hearing is a stressful environment and accept that the Appellants were nervous. I also acknowledge that the Appellants were self-represented during the RPD proceeding. However, I find that this does not satisfactorily explain the numerous significant inconsistencies and omissions in the PA's testimony and evidence about events that are at the core of the claim and which he himself experienced. As already noted, I find that the RPD conducted the hearing in a fair and considerate manner. The RPD acknowledged that persons who have experienced trauma may have difficulties in presenting their case and recalling details and events. However, the RPD correctly determined that the Appellants did not appear to have any difficulties recalling details or events during the oral hearing. The Appellants are relatively well-educated. No supporting medical or psychological evidence has been provided that would account for the issues in the PA's testimony. There is no evidence of interpretation issues during the RPD hearing. [73] The Appellants also submit that the PA's narrative was written "much time after the events" with the help of AA and his parents, and that when he wrote his narrative it was only about events that happened to himself, not others.43 [74] I do not accept these arguments. It is unclear why this would lead to inconsistencies and omissions in relation to the PA's testimony. Moreover, the Appellants affirmed that their BOC forms were complete, true, and correct at the time of signing them, and at the RPD hearing. It is clear that the PA's narrative is not only about him, as he addresses the allegations concerning the AA and his father. [75] I have considered whether the Appellants' supporting documentation is capable of independently establishing their allegations with respect to the PA's alleged abduction on XXXX XXXX, 2018, however I find that it is not. As the RPD correctly noted, the PA' photos cannot establish their allegations. They do not establish the identity of the injured person, the date of the injuries, or their cause. For the most part, the Appellants' supporting letters provide only general and brief information about the alleged abduction. The letter from the local resident who allegedly found the PA after his abduction is more detailed, however it does not shed light on who or what caused his injuries. The author merely infers that a cartel was responsible given criminal activity in his area. I find that the Appellants' documentary evidence is insufficient to establish the PA's allegations, on a balance of probabilities. [76] Therefore, while I accept the Appellants' testimony about events that they experienced in 2017, I do not accept the PA's allegation that he was abducted on XXXX XXXX, 2018, or that his father was subsequently extorted or threatened as a result. There is no evidence that the Appellants were threatened by the CJNG, or had any interactions with the cartel after XXXX 2017, including after they returned to the same city in Mexico in XXXX 2018, where they were originally threatened by the cartel. The RPD correctly found that the Appellants have a viable IFA in Merida [77] As per Rasaratnam, the two-pronged test for an IFA is as follows. The panel must be satisfied that (1) there is no serious possibility of the Appellant being persecuted or, on the balance of probabilities, in danger of torture or subjected to a risk to life or cruel and unusual treatment or punishment in the IFA,44 and (2) that conditions in that part of the country are such that it would be reasonable, in all the circumstances, including those particular to the Appellant, for them to seek refuge there.45 [78] Once IFA is raised as an issue, the onus is on the Appellant to show that they do not have an IFA.46 The burden placed on the Appellant is high in order to show that the IFA is unreasonable. The test to show that the IFA is unreasonable requires nothing less than the existence of conditions that would jeopardize the life and safety of the Appellant in relocating to a safe place. Actual and concrete evidence of adverse conditions is required. The IFA meets the first prong of the test: the Appellants are not at risk in Mérida [79] The RPD acknowledged the objective documentary evidence that the CJNG may operate in the IFA location, and that, in general, cartels maintain a fluid presence throughout Mexico. It also noted that cartels rely on family networks, and use other methods, some of which are sophisticated, such as GPS trackers, to find their targets. The RPD found that the preponderance of the objective documentary evidence establishes that if an organized crime group is sufficiently motivated, it potentially has the means to find individuals throughout Mexico. [80] However, after considering the circumstances of the case, the RPD found that in spite of having the means, there is insufficient evidence that the CJNG have the motivation to pursue the Appellants to the IFA location. [81] The RPD considered that no one in the PA's family or the AA's family has been approached by the CJNG. Although the PA alleges that his father was contacted by his son's abductors in XXXX 2018, the calls stopped after he changed his phone number. In any case, as already noted, I find that this allegation lacks credibility. Overall, the RPD concluded, even if one accepts the Appellants' allegations, there is no evidence that the perpetrators have looked for or threatened the Appellants or their family members in Mexico since the Appellants left XXXX, Morelos, in XXXX 2018. [82] The RPD found that the Appellants' assertion that they will be found and harmed anywhere in Mexico to be speculative, and that, on a balance of probabilities, the perpetrators would not be motivated in pursuing them unless they return to XXXX. [83] I agree with the RPD that the Appellants failed to establish, on a balance of probabilities, that the agents of harm, the CJNG, possess the motivation to find and harm them in Merida, Yucatan. [84] The Appellants argue that the CJNG has a presence throughout Mexico, including Merida. They submit that the CJNG is the most powerful criminal organization in Mexico. They submit that Mexico has high levels of corruption, and the cartel has connections with the Mexican authorities. Additionally, the CJNG has insiders working for them, including taxi drivers, airport workers, police officers, politicians, and vendors on the street. The Appellants submit that the CJNG has the resources to locate them in Merida. [85] I find that the objective documentary evidence establishes that "[i]f a criminal group has very strong motivation to find and retaliate against a certain person...especially if the criminal group were one of the more powerful groups in Mexico" and/or "a group with indications of having cooperation from relevant authorities," then "[the ability to track or retaliate against a certain person] would be a reasonable concern to have."47 According to one source, "if organized crime groups in other parts of Mexico are "interested and willing to retaliate against people relocated in [Mérida, Campeche, Cabo San Lucas, or Mexico City], they could do it easily."48 The evidence indicates that cartels may employ "corrupt law enforcement agents" to obtain information about people they pursue.49 [86] The affidavits that the Appellants have provided from a military and a police officer concerning the capacity of organized criminal groups to track their targets, and their use of corrupt police officers and officials, support and are consistent with these findings.50 [87] However, the objective documentary evidence also shows that not every target or person of interest to the CJNG is "worth the time or resources...to track."51 "[It] is an oversimplification to say that a group will track just anyone. It really depends on who you are and what you did. Low ranking members are not worth the time or resources for armed groups to track and kill. Instead, high-ranking members or someone who betrayed a [high-ranking member of] a criminal organization may cause you to be tracked or targeted. Similarly [according to another source] the safety of an individual who relocates to flee from one of these organizations' threats depend on the interests a group may have to punish or retaliate against them. If the conflict is not too serious, a relocation might work. But if any of these organizations is interested in harming [an individual], no city will provide a safe haven."52 According to the objective documentary evidence, a large debt or personal vendetta could motivate an organized crime group to track someone outside their area.53 [88] The Appellants argue that the CJNG are motivated to find and kill them because the PA refused to cooperate with them, which led them to lose money. Also, they argue that the CJNG demanded a monthly payment from the CJNG of XXXX pesos to avoid harming the PA, and then increased the amount. [89] I find that there is insufficient credible evidence to establish that the CJNG consider the Appellants targets that are "worth the time or resources" to track. They have not established that any conflict with the CJNG is sufficiently serious, that they are perceived by the CJNG to possess a large debt, or that any members of the CJNG have an ongoing personal vendetta against them. [90] The Court has found that even if an agent of persecution has the means to pursue an individual throughout the country, this does not demonstrate that they have the motivation to do so. In the absence of such motivation, the Board may reasonably conclude that there is no serious possibility of persecution.54 In assessing motivation, the Board may take into consideration the fact that the agents of harm did not bother the Appellant in the months before her departure to Canada even though she was not in hiding, or contact her family members.55 In this case, both circumstances apply, and I find that the RPD was correct to find that this is evidence of a lack of motivation on the part of the CJNG. [91] As already noted, I find that the Appellants have not credibly established that the PA was abducted or that the CJNG demanded a monthly payment from the PA's father. Nor have they demonstrated that the PA's refusal to transport drugs by motorcycle in XXXX 2017 would be sufficient to motivate the cartel to find and harm them in another state. [92] The Appellants' family members have not been contacted, approached, or threatened by the agents of harm. The AA has close family who reside in XXXX, the city where the Appellants were targeted by the CJNG in 2017. There is no credible evidence that the Appellants' family members have moved or taken any precautions other than changing phone numbers. [93] The PA asserts in his Memorandum that he "told [his] parents moved out of the city." It is unclear where or how he conveyed this to the Board. He does not provide any further details, such as when they moved, or to where. I find no record of any such testimony in the transcript, BOC, or other admissible evidence. Therefore, I do not accept this statement. Moreover, even if this is true, this alone does not establish his claim, in the absence of any targeting of the Appellants' relatives. [94] Also, there is insufficient credible evidence of any interactions between the Appellants and the CJNG since XXXX 2017. The Appellants did not credibly establish that they were targeted by the CJNG after they moved back to Mexico in XXXX 2018, after spending five months in Canada. The Appellants resided in XXXX for another five months until they returned to Canada in XXXX 2018. The Appellants were not in hiding during this time. The PA returned to his previous work as a XXXX XXXX during this time.56 [95] The Appellants submit that they already been persecuted, threatened, kidnapped, and tortured by one of the most dangerous crime organizations in the world. They submit that the CJNG managed to locate them after they moved to another part of XXXX. [96] I accept that the Appellants were threatened by the CJNG, and that the AA was the victim of an attempted abduction, in XXXX 2017. I find that these facts, particularly the attempted kidnapping and assault of the AA, indicate that the Appellants were local targets of the CJNG at that time. However, after considering all the facts and available evidence, I find that the Appellants have not established that the CJNG have any ongoing interest in finding and harming them that would constitute sufficient motivation to employ the cartel's capacity to pursue them to another part of Mexico, including the IFA. For the reasons already provided, I do not accept that the agents of harm found the PA after his return to Mexico in XXXX 2018. [97] The RPD made several other findings in favour of a viable IFA for the Appellants (under the first prong) findings, however I do not rely on these for my decision, and find that it is not necessary to consider them further. [98] For these reasons, I find, on a balance of probabilities, that the Appellants would not be in danger of torture or subjected to a risk to life or to a risk of cruel and unusual treatment or punishment in Merida. The IFA meets the second prong of the test: the IFA is reasonable [99] The RPD found that the Appellants failed to establish that conditions in Merida are such that it would be unreasonable, in all the circumstances, including those particular to the Appellants, for them to seek refuge there. [100] The RPD considered the Appellants' testimony that they have no family in the IFA location. The RPD noted that while family may facilitate their resettlement, the lack of family does not in and of itself render the IFA unreasonable. [101] The RPD also considered the Appellants' testimony that they have an autistic child who receives therapy in Canada. The RPD noted that there was no evidence that their child could not obtain treatment in Mexico. The RPD acknowledged that while the Appellants may prefer the treatment options in Canada, this is not a sufficient reason to find that the IFA would be unreasonable. [102] The RPD noted that the Appellants did not present any evidence to indicate that their Canadian-born child could not attend school, or that they would be unable to obtain housing, employment, medical or health care, in Merida. [103] The RPD considered that the Appellants have XXXX-level education and were employed prior to their departure from Mexico. The RPD found that the Appellants possessed skills and the means to travel to the IFA location, find work, and make a living there for their family. [104] The RPD analysed the objective country evidence in relation to the Appellants' personal circumstances. It noted that the Appellants are part of the linguistic, ethnic, and religious majority in Mexico. With few exceptions, there are no restrictions on movement throughout the country. [105] The Appellants do not contest these findings on appeal and have not provided any submissions with respect to the reasonableness of the IFA. [106] I agree with the RPD's findings for the same reasons it provides. [107] The Appellants face a high burden to show that the IFA is unreasonable. They have not met this burden by providing actual and concrete evidence of adverse conditions that would jeopardize their life and safety in relocating to the IFA. [108] Overall, I find that the Appellants have not demonstrated that it would be objectively unreasonable or unduly harsh for them to relocate to Mérida. CONCLUSION [109] I find that the Appellants have a viable IFA in Merida, Yucatan. [110] As this finding is determinative of the claim, it is not necessary to consider the other findings by the RPD. [111] 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) C. Prowse C. Prowse March 28, 2023 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, subsection 110(4). 3 Singh v. Canada (Citizenship and Immigration), 2016 FCA 96, [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 4 Appellant's Record, at pp. 17-20. 5 Ibid, at pp. 21-26. 6 Ibid, at pp. 27-28. 7 Ibid, at pp. 29-34. 8 Ibid, at pp. 35-38. 9 Ibid, at pp. 39-42. 10 Ibid, at pp. 43-46. 11 Ibid, at pp. 47-48. 12 Ibid, at pp. 49-56. 13 Ibid, at pp. 57-58. 14 Ibid, at pp. 59-60. 15 Ibid, at pp. 61-62. 16 Ibid, at pp. 69-73. 17 Ibid, at pp. 74-78. 18 Ibid, at pp. 79-80. 19 Ibid, at pp. 63-68. 20 RAD Rule 3(3)(g) 21 Appellants' Record, Appellants' Memorandum, at p. 45. 22 Singh v. Canada (Citizenship and Immigration), 2016 FCA 96, [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 23 Idugboe v. Canada (Citizenship and Immigration), 2020 FC 334, at paras. 22 and 25; Shajil Ali v. Canada (Citizenship and Immigration), 2013 FC 156, at para. 6; Tuncdemir v. Canada (Citizenship and Immigration), 2016 FC 993, at para. 37. 24 RPD Hearing Transcript (November 21, 2022), at p. 20. 25 Ibid, at pp. 10-11. 26 Appellants' Record, at p. 64 27 RPD Hearing Transcript (November 21, 2022), at p. 10. 28 Eshetie v. Canada (Citizenship and Immigration), 2019 FC 1036. 29 Refugee Protection Division Rules (SOR/2012-256), Rule 11: Documents Establishing Identity and Other Elements of the Claim. 30 IRPA, section 110(6). 31 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. 32 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). 33 Tovar v. Canada (Citizenship and Immigration), 2016 FC 598; Lunda v. Canada (Citizenship and Immigration), 2020 FC 704. 34 RPD Record, RPD Decision, at p. 10, para. 34. 35 Ibid., at p. 8, para. 25. 36 RPD Hearing Transcript (November 21, 2022), at pp. 8-9. 37 Ibid., at p. 7. 38 Ibid. 39 Ching v. Canada (Citizenship and Immigration), 2015 FC 725. 40 Oluwaseyi Adeoye v. Canada (Citizenship and Immigration), 2018 FC 246, at paras. 13 to 15. 41 Akram v. Canada (Citizenship and Immigration), 2018 FC 785. 42 Akcay v. Canada (Citizenship and Immigration Canada), 2020 FC 950, paras. 53-59; Corvil v. Canada (Citizenship and Immigration), 2019 FC 300, para. 13; Antunano Martinez v. Canada (Citizenship and Immigration), 2019 FC 744, paras. 15 to 20; Zhang v. Canada (Citizenship and Immigration), 2019 FC 870, paras. 13 and 14; Nuriddinova v. Canada (Citizenship and Immigration), 2019 FC 1093, para. 47; Smith v. Canada (Citizenship and Immigration), 2019 FC 1472, para. 31. 43 Appellants' Record, Appellants' Memorandum, at p. 5. 44 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 45 Ibid. 46 Ibid. 47 National Documentation Package (NDP) for Mexico (September 29, 2022), item 7.8: The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatán state, State of Campeche, and Baja California Sur); the ability and motivation of organized crime groups and cartels active in other areas of Mexico, including the Jalisco New Generation Cartel (Cartel Jalisco Nueva Generación, CJNG), Sinaloa Cartel, and Los Zetas, to track and retaliate against people who relocate to these areas (2019-August 2021), Immigration and Refugee Board of Canada (IRB). 48 Ibid. 49 Ibid., 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), IRB. 50 Appellants' Record, Appellant's Memorandum, New Evidence. 51 NDP for Mexico (September 29, 2022), item 7.8. 52 Ibid. 53 Ibid, item 7.15. 54 Leon v. Canada (Citizenship and Immigration), 2020 FC 428. 55 Torres Zamora c. Canada (Citoyenneté et Immigration), 2022 CF 1071. 56 RPD Record, Schedule A form, at p. 47. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC2-36307 TC2-36308 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