MC0-08888

RAD File No. / No de dossier de la SAR : MC0-08888 MC0-08889 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 Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision May 11, 2021 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the persons who are the subject of the appeal Me Alfredo Garcia 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 allow the appeal. XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, his common-law wife, are citizens of Mexico. They are XXXX XXXX by training and are alleging that they received death threats from members of a cartel after they refused to be in their pay. Colleagues first approached the female appellant at the police station in XXXX 2018, to get her to participate in a scheme to allow armed convoys through an access XXXX XXXX. After she refused, she was approached again two weeks later and told that people who do not comply are killed. [2] In XXXX 2018, Mr. XXXX failed an exam for a licence renewal related to his duties and was laid off. Two police officers approached him in XXXX 2018 to ask if he would join the cartel. He refused but was told that he should reconsider or he and his wife would be killed. He was approached again in front of his home in late XXXX and, again refusing, was informed that their families would also suffer consequences. [3] They decided to leave and arrived in Canada on XXXX XXXX, 2018, where they claimed refugee protection. [4] The Refugee Protection Division (RPD) determined that the appellants are neither Convention refugees nor persons in need of protection. It raised credibility issues, noting the following: - vague or hesitant testimony regarding the main incidents - three instances of inconsistent behaviour for people who allegedly fear being harmed or killed [5] The appellants submit that the RPD erred in its decision in that: - the negative credibility findings are the result of secondary and peripheral analysis - it dismisses justifications for why the appellants' families were not informed of threats against them - they explained and justified their actions - it ignores the objective evidence by concluding that the documents they filed do not show that the authorities are corrupt and have been infiltrated by the cartels [6] The determinative issue for the Refugee Appeal Division (RAD) is credibility. DETERMINATION [7] The appeal is allowed. I substitute the RPD's determination with my own determination that the appellants are persons in need of protection. ANALYSIS [8] My role is to examine all the evidence and determine whether the RPD's decision is correct.1 Negative credibility findings are the result of secondary and peripheral analysis [9] The RPD considered that the female appellant's written account provides few details about central events. It noted the absence of details as to when she was approached, which individuals approached her and where this contact took place. [10] It noted that the male appellant showed the same deficiencies as he struggled to explain what he was doing in front of his house when approached the second time, how the individuals got to his house and whether he knew them. [11] It also noted that their testimony changed depending on whether they were testifying about work duties or about events. In the first case, they were spontaneous, whereas it was quite the opposite for events. This contrast in testimony led the RPD to make a negative credibility finding. [12] The appellants submit in their memorandum that the female appellant spontaneously provided several details about the incident. The male appellant provided additional information such as the name of the street where he encountered the police officers. It is argued that it is normal for the RPD to ask questions in the context of a hearing and that to draw negative inferences from these answers is unreasonable. [13] Listening to the hearing does not show a lack of spontaneous testimony by either appellant. What is notable is the fragmentation of their sentences to allow the interpreter to do their job. I also note that the lack of spontaneity raised by the RPD is more due to the interpreter than to the witnesses. [14] A few times, the interpreter struggled to understand the technical terms used by the appellants, asking for clarifications. For example, the female appellant's testimony as to her location at the time of the initial contact was understood to be the police station parking lot. However, the interpreter did not seem to understand and stated that it was a patio or a backyard. A little later, when the female appellant testified about the individuals' identity, counsel, who is fluent in Spanish, intervened to draw the interpreter's attention to an omission, namely the failure to state the last names of the individuals specified by the female appellant. Throughout, there was difficulty in the fluidity of the translation, where the context appeared to be misunderstood and did not allow for a translation that reflected the testimony. Whether through the use of words that were abstract or that did not lend themselves to proper usage in the context, the translation gave the impression that the terms used by the appellants were confusing while their testimony appeared to be clear and specific. Moreover, at one point, their counsel intervened to remind his client that the terms used were too technical and asked him to use simpler language. [15] For these reasons, the RPD's finding that the appellants' credibility is undermined by the information provided in their testimony is wrong. Justifications for not notifying the appellants' families of threats against them [16] The RPD noted that the female appellant's family lives in XXXX XXXX XXXX XXXX XXXX XXXX, while the male appellant's family lives in Irapuato, Guanajuato and Mexico City, Mexico. None of the family members, except for the appellant's brother in Mexico City, were informed of the threat against them. When questioned about the reason for this silence, the appellants stated that they did not want to worry them and that since they were the persons of interest, keeping their distance would protect their families. [17] The RPD considered these explanations unsatisfactory given that this was the fourth death threat, with an escalation that now extended to the family. It did not consider their departure at all reassuring considering that their agent of harm, the Jalisco cartel, is notorious for its unforgiving actions and the extent of its reach. It found that not looking out for the family undermined their credibility. [18] In their memorandum, the appellants state that their explanations for their actions stand. Abroad, they are no longer a threat to the group or to the corrupt police, so there is no need to go after the family. The cartel also does not know the identity and location of the family members. Lastly, the threats were made in order to create fear and prevent being reported. The appellants claim the risk of the threats fades as soon as the risk of being reported disappears. [19] Although cartels can be present in a vast territory and use violence, the explanations provided by the appellants at the hearing appear to make sense. First, recruiters expose themselves to possibly being reported by those who refuse to be recruited into a criminalized group. This is all the more real when the recruiters and recruits are XXXX XXXX. Knowing the identity of corrupt colleagues adds an additional level of risk for XXXX XXXX XXXX as well as the cartel. Recruiters who are reported run the risk of being arrested by a higher court, while the cartels risk losing useful partners who provide unexpected access. The reasoning for the actions of recruiters or cartels is unknown. Vengeance and revenge are closely linked to the operations of criminal groups. The RPD's conclusion about the appellants' actions, despite the explanations they provided about the context in which they found themselves, is wrong. Explanations and justifications for their actions [20] The RPD noted that the appellant did not quit her job despite the threats against her. Having already lost his, Mr. XXXX did not take any steps to relocate even though the recruiting police officers had found him at home. [21] In the RPD's view, these actions are inconsistent with those of people who fear for their safety. It drew negative inferences about their credibility from these findings. [22] In their memorandum, the appellants submit that the RPD did not accept the full explanation for their actions. They state that they explained that it would have been futile to move considering that the authorities have access to databases to find them. In addition, the cartel's extensive capabilities allow them to find them no matter where they are. They submit that the short time between the last threats and their departure also alleviates the risks involved. [23] Although the female appellant continued to work XXXX XXXX XXXX XXXX despite the threats in XXXX 2018, she had the support of her husband who was in a senior position until XXXX 2018. The latter ensured security measures at the female appellant's assignments and saw to her safety. Starting in XXXX 2018, they faced administrative constraints for the male appellant's case, but he was not targeted until XXXX. Staying on the job allowed them to save money to pay for his education and support the household for the short time until they left. Less than a month passed between the second threat against the male appellant and their departure. [24] There is a reasonable explanation for the appellants' actions. Because of their duties, they are familiar with the tools and techniques available for finding someone. For them, relocation is not a viable option considering the use of these tools and the cartel's influence. [25] The situation described by the appellants is serious and the conclusions reached by the RPD are understandable. However, as each case must be assessed on its own facts, I consider that the appellants' particular circumstances and their justifications for having acted as they did do not undermine their credibility. Disregarding objective evidence by concluding that the documents filed do not demonstrate that the authorities are corrupt and have been infiltrated by the cartels [26] The numerous documents filed by the appellants establish their employment XXXX XXXX XXXX. The RPD concluded, however, that these documents do not corroborate the threats received from police officers attempting to recruit them for the cartel. It gave them little probative value in establishing the basis of their claim. [27] The appellants state in their memorandum that the National Documentation Package on Mexico contains several documents that corroborate the infiltration of cartels in Mexican institutions (tabs 1.5, 2.1, 7.1, 7.2, 7.9, 7.12, 7.13, 7.16 and 7.17). The documents are considered objective and their content is assumed to be known. To criticize the appellants for not having evidence of the involvement of police officers on behalf of a cartel ignores the documentation of the corruption that exists within the Mexican police. [28] Furthermore, it is also important to bear in mind the principles arising from Maldonando.2 On a balance of probabilities, the appellants are XXXX XXXX. The objective documentation shows significant criminal infiltration within institutions such as the police. Being recruited is not impossible considering the strategic position that the female appellant's duties involved. In addition, while he is no longer employed by the police, the male appellant remains useful because of his knowledge of the workings of the XXXX XXXX and his close relationship with a person still working for XXXX XXXX. Therefore, on a balance of probabilities, applying the principles in Maldonado, the appellants' status XXXX XXXX XXXX XXXX must be considered as exposing them to being targeted by criminals through XXXX, in accordance with their testimony. [29] The RPD erred in refusing to give probative value to the exhibits submitted and in requiring the appellants to submit evidence demonstrating corruption within the police force. [30] Taking up the points made by the RPD, I consider that the appellants testified in a spontaneous and forthcoming manner, providing details and explaining in a way that made sense of behaviour that could at first be considered inconsistent with the alleged fear. [31] Because of their work, the nature of the threats they face and the identity of their agents of harm, I consider that, on a balance of probabilities, they are subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment, or to a danger of torture, everywhere in Mexico. CONCLUSION [32] The appeal is allowed. I substitute the RPD's determination with my own determination that the appellants are persons in need of protection. (signed) Me Richard Sheitoyan Richard Sheitoyan May 11, 2021 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-08888 MC0-08889 RAD.25.02 (January 2020) Disponible en français 8 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