TB9-01820

RAD File / Dossier de la SAR : TB9-01820 TB9-01821 / TB9-01822 / TB9-01823 TB9-01824 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne|s en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision February 10, 2020 Date de la décision Panel Me Jo-Anne Pickel Tribunal Counsel for the person|s who is|are the subject of the appeal Lily Luwam Tekle Conseil de la|des personne|s en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss this appeal for the reasons that follow. XXXX XXXX XXXX, her spouse, XXXX XXXX XXXX, and her children, XXXX XXXX XXXX XXXX XXXX XXXX XXXX, and XXXX XXXX XXXX XXXX (Appellants) are citizens of Mexico. [2] The Appellants fear that they would be seriously harmed or killed by huachicoleros (fuel thieves) if they were to return to Mexico. The Appellants lived in XXXX in the state of Hidalgo. They were victims of extortion, threats, and an attempted kidnapping by huachicoleros (fuel thieves). The huachicoleros threatened Ms. XXXX XXXX that if she did not pay, her daughters would suffer the consequences. The Appellants paid from XXXX 2016 until XXXX 2017 when they did not have money to pay the extortion because they had to contribute to a XXXX that Ms. XXXX XXXX mother was having. [3] The RPD found that the issue of an internal flight alternative was determinative. It found that the Appellants would have a viable internal flight alternative in Cuernavaca, Tulancingo, Hermosillo, La Paz or Cancún. The RPD found that there was insufficient evidence to establish that the huachicoleros extorting the Appellants have the means, interest or motivation to locate them in any of the internal flight alternative cities. It also found that it would not be unreasonable to expect the Appellants to relocate to the internal flight alternative cities. The Appellants challenge these findings. DECISION [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 I find that the RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection as they have viable internal flight alternatives in, at least, Hermosillo, La Paz or Cancún. REQUEST FOR IN-PERSON HEARING [5] The RAD only has the power to hold an in-person hearing in certain circumstances when it has admitted new evidence.2 Since the Appellants submitted no new evidence, and therefore I have admitted none, the Appellants' request for an in-person hearing is denied. ANALYSIS [6] The onus is on the Appellants to demonstrate that they do not have a viable internal flight alternative in their home country. As the Appellants acknowledged at the hearing, their claims have no nexus to any of the grounds contained in the refugee Convention. Therefore, their claims must be examined under s. 97 of the Immigration and Refugee Protection Act (IRPA) which provides protections for persons in need of protection. The two-pronged internal flight alternative test for claims arising under s. 97 of the IRPA is the following:3 1) The RPD must be satisfied on the balance of probabilities (that is, that it is more likely than not) that the Appellants would not be subjected to one of the types of harm that would make them persons in need of protection in the internal flight alternative locations. 2) The conditions in the part of the country under consideration must be such that it would not be unreasonable, in all the circumstances, for the Appellants to seek refuge there. The threshold for unreasonableness is a very high one and requires nothing less than the existence of conditions that would jeopardize the life and safety of a claimant.4 First prong of the internal flight alternative test [7] I do not agree with the Appellants that the RPD erred in finding that they failed to establish that they would be subjected personally to any of the types of serious harm that would make them persons in need of protection, at least in the cities of Hermosillo, La Paz or Cancún. [8] I do not agree with the Appellants that the RPD ignored their evidence about the profile of the huachicoleros and their ability to locate people throughout Mexico. In fact, the RPD specifically addressed the evidence it had before it on the huachicoleros which included news articles submitted by the Appellants and the evidence about huachicoleros contained in the National Documentation Package (NDP) for Mexico. Huachicoleros is the term given to fuel thieves who steal petroleum products and sell them on highways and other locations.5 I do not agree with the Appellants that the objective evidence supports their testimony that all huachicoleros are associated with dangerous drug cartels. The evidence indicates that fuel thieves may be local criminals acting on their own or in conjunction with drug cartels. In addition, fuel theft is increasingly also engaged in by certain drug cartels themselves, who are moving into muscle out small operators.6 Even if some huachicoleros may be associated with drug cartels, the Appellants did not know if the huachicoleros who extorted them were associated with any particular gang or cartel.7 There is simply no evidence, beyond the Appellants' own speculation, that the persons extorting them are connected to any larger drug cartel. [9] I do not agree with the Appellants that they would have to live in hiding if they were to relocate to Hermosillo, La Paz or Cancún. As just noted, there was no evidence that the huachicoleros who extorted the Appellants were associated with any drug cartel, let alone any cartel with a sphere of influence in Hermosillo, La Paz or Cancún. In addition, these three cities lie at a great distance from the primary zones for huachicolero fuel theft. The objective evidence in this case indicates that, while fuel theft has been spreading throughout Mexico, it is primarily centered in the Red Triangle region of the state of Puebla where several pipelines intersect.8 In addition, the evidence indicates that fuel theft activities extend along the Gulf of Mexico coast from the border with the United States to Tabasco state in the south.9 The three internal flight alternative cities of Hermosillo, La Paz or Cancún fall well out of this region. [10] While the Appellants believe that the huachicoleros who were extorting them could track them down anywhere in Mexico, they did not know precisely how they would do so. Ms. XXXX XXXX testified that she had heard about a street vendor who refused to pay extortion money who had his family abducted. However, that appeared to be in the town they lived in. I agree with the RPD that the evidence does not establish on a balance of probabilities (that is, that it is more likely than not) that the huachicoleros who extorted the Appellants would have the means, interest and motivation to track them to any of the three internal flight alternative cities listed above where they have no influence and which lie at a significant distance from the central fuel theft zone in Mexico. This is especially the case since the Appellants testified that they did not know whether the huachicoleros who had extorted them were still looking for them and they had not gone looking for the Appellants at Ms. XXXX XXXX mother's place. There was also no evidence that they had contacted any other family members or gone back to the house that the Appellants had lived in which belongs to Mr. XXXX XXXX's sister.10 [11] I do not agree with the Appellants that the RPD erred in not considering the general evidence relating to the prevalence of cartel violence, criminal activity, serious challenges to the rule of law and human rights violations in Mexico. All of this evidence speaks to the general climate of general criminality in Mexico. The issue under the first prong of the internal flight alternative test is whether the Appellants have established, on a balance of probabilities, that they would be subjected personally to one or more of the types of serious harm that would make them persons in need of protection in the internal flight alternative locations. When individuals are claiming a risk of death or cruel and unusual punishment or treatment, as the Appellants in this case, in order to establish that they are persons in need of protection in an internal flight alternative location, they must show that the risk of serious harm they would face is not faced generally by other individuals in or from their country.11 Therefore, I do not agree with the Appellants that the general level of criminality in Mexico or the general state of human rights in Mexico makes them either persons in need of protection in any of the internal flight alternative locations listed above. There is also no evidence to support any argument that the Appellants face a serious possibility of persecution on a Convention ground in any of the internal flight alternative locations. Second prong of the internal flight alternative test [12] I agree with the Appellants that the RPD erred in not explicitly considering the medical reports that were admitted into evidence when considering whether it would be unreasonable in all the circumstances to expect the Appellants to relocate to one of the internal flight alternative cities. However, I find that the medical reports do not establish that it would be unreasonable for the Appellants to relocate to Hermosillo, La Paz or Cancún. [13] The psychiatric reports from XXXX XXXX XXXX XXXX submitted by the Appellants indicate that, unfortunately, both Ms. XXXX XXXX and her daughter XXXX have severe chronic XXXX XXXX XXXX XXXX XXXX.12 XXXX XXXX XXXX noted that MsXXXX XXXX XXXX had an XXXX XXXX history of XXXX XXXX in addition to her more recent history of extortion demands and threats. XXXX XXXX XXXX indicated that Ms. XXXX XXXX has achieved some relief from some of her XXXX XXXX since coming to Canada and that this can be attributed to her feelings of relative safety here. According to XXXX XXXX XXXX, the first prerequisite for her to continue to heal is for her to be able to feel safe, for herself and her children, in the long term. XXXX XXXX XXXX noted that Ms. XXXX XXXX uncertain status in Canada placed her and her family at risk of being forced to return to Mexico where all of her XXXX XXXX occurred and where her XXXX XXXX lie. In XXXX XXXX XXXX opinion, Ms. XXXX XXXX will not be able to make full use of any form of psychological treatment until the threat of being sent back to the place of her XXXX XXXX is removed on a permanent basis. According to Dr. XXXX, the uncertainty and fear of the XXXX occurring again keeps her focused on the past and maintains her XXXX XXXX. [14] Similarly, with respect to XXXX XXXX XXXX XXXX XXXX stated that in order for XXXXto be able to work on fully healing her XXXX XXXX, it is imperative that she feel safe in the long term. XXXX XXXX XXXX goes on to give her opinion that "once XXXX and her family's lives have stabilized in Canada and they are no longer afraid of being forced to return to Mexico", XXXX will benefit from XXXX XXXX XXXXtherapy. [15] XXXX XXXX XXXX reports do not address the anticipated effects on Ms. XXXX XXXX and XXXX if they were to return to Mexico and relocate to a city where they are not likely to be subjected personally to serious harm at the hands of their agents of harm, the huachicoleros who were extorting them in XXXX. Although XXXX XXXX XXXX speaks to the place where Ms. XXXX XXXX index XXXX occurred, it is not clear whether she meant Mexico as a whole or the area where the Appellants experienced the extortion and threats against them. In my view, if XXXX XXXX XXXX meant Mexico as a whole, one would expect that this would be clearly set out and substantiated in her report. [16] I note in addition that neither Ms. XXXX XXXX nor Mr. XXXX XXXX spoke of any concern that the XXXX experienced by Ms. XXXX XXXX and XXXX would be triggered by a return to any of the internal flight alternative locations identified by the RPD. When the RPD asked Ms. XXXX XXXX why she would not be safe in the internal flight alternative cities identified by the RPD, Ms. XXXX XXXX said that the huachicoleros who were extorting them could find them anywhere in Mexico. She also said that she and her daughter were very afraid and did not want to go back. When the RPD followed up on this answer to ask whether they could live in the internal flight alternative cities if they did not have any problems with gangs, Ms. XXXX XXXX said that she could not because nowadays there is too much criminality, too many cartels, and the country itself is no longer safe. When the RPD asked whether there were any other reasons, she said no.13 When Mr. XXXX XXXX was asked by the Appellants' counsel whether he thought that his daughter would ever feel safe if the Appellants moved back to Mexico but lived elsewhere, he said no and nothing more.14 [17] To summarize, the main evidence in support of the Appellants' belief that it would be unreasonable to expect them to relocate to the internal flight alternative locations is XXXX XXXX XXXX report which does not specifically consider the possibility of the Appellants returning to Mexico to a city outside the region where they experienced the harm described in their asylum claim, Mr. XXXX XXXX statement that he does not believe that his daughter will ever feel safe anywhere in Mexico and Ms. XXXX XXXX testimony that she and her daughter are afraid and do not want to go back. In my view, this evidence is insufficient to meet the very high threshold for establishing that an internal flight alternative is unreasonable which requires nothing less than the existence of conditions that would jeopardize the life and safety of a claimant. No error in not providing reasons as to credibility concerns [18] I disagree with the Appellants that the RPD erred in stating that it had some significant credibility concerns about the Applicants' evidence and that there were unresolved issues relating to their delay in claiming asylum, their return to Mexico, and their failure to claim asylum on previous trips to Canada without giving providing reasons on these issues. The RPD did not have to make findings in relation to the credibility of the extortion the Appellants alleged since it found that the issue of an internal flight alternative was determinative. In other words, even assuming that all of the Appellants' allegations relating to the extortion they experienced are true, they still are not Convention refugees or persons in need of protection as they have viable internal flight alternatives in Mexico. CONCLUSION [19] For these reasons, 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) Jo-Anne Pickel Me Jo-Anne Pickel February 10, 2020 Date JP/tm 1. Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 2 Section 110 (6) of the Immigration and Refugee Protection Act. 3 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (CA). 4 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 (CA). 5 Tab 7.9 of the NDP for Mexico (August 30, 2019) at p. 26. 6 "Blood and Oil Mexico's Drug Cartels and the Gasoline Industry" (Rolling Stone, September 6, 2018), Exhibit 11 of the RPD Records at p. 573. 7 Transcript included in Appellants' Appeal Record pp. 21-22. 8 Tab 7.9 of the NDP for Mexico (August 30, 2019) at p. 26; "Blood and Oil Mexico's Drug Cartels and the Gasoline Industry" (Rolling Stone, September 6, 2018), Exhibit 11 of the RPD Records at p. 583; Huachicoleras on the Rise in Mexico" (Justice in Mexico), Exhibit 11 of the RPD Records at p. 610. 9 "Blood and Oil Mexico's Drug Cartels and the Gasoline Industry" (Rolling Stone, September 6, 2018), Exhibit 11 of the RPD Records at p. 573. 10 Transcript included in Appellants' Appeal Record p. 16. 11 Section 97 (1) (b) (ii) of the Immigration and Refugee Protection Act (IRPA). 12 Exhibit 10 of RPD Record, pp. 562-69. 13 Transcript included in Appellants' Appeal Record pp. 15-16. 14 Transcript included in Appellants' Appeal Record p. 23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-01820 TB9-01821 / TB9-01822 / TB9-01823 TB9-01824 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