MB9-05816

RAD File / Dossier de la SAR : MB9-05816 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision September 19, 2019 Date de la décision Panel John Helis Tribunal Counsel for the person who is the subject of the appeal Chantal Ianniciello Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX (the Appellant), citizen of Mexico, appeals a decision of the Refugee Protection Division (RPD), dated March 6, 2019, rejecting his claim for refugee protection. [2] The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that he is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be referred back to a different panel of the RPD for redetermination.1 DETERMINATION [3] The appeal is dismissed. I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection.2 SUMMARY OF THE FACTS [4] The Appellant is a 19-year-old man who purportedly fears persecution or harm from a self-described soccer promoter in Mexico. The Appellant aspires to become a professional soccer player, and claims that he entered into an agreement with the promoter on XXXX XXXX, 2018, to play on a team. Two days after the initial meeting, the Appellant travelled to XXXX where he stayed at a house for ten days with the soccer promoter, his associates, and several other aspiring soccer players while waiting to be called by the soccer team. [5] The Appellant alleges that he was mistreated, was kept in the house against his will, that he witnessed circumstances and events that lead him to believe that illegal activity was taking place, that he was threatened when he left the house, and that he subsequently felt that the soccer promoter was pursuing him after he left XXXX. [6] The Appellant left Mexico with his grandmother on XXXX XXXX, 2018, to visit an aunt who lives in Canada. He claims to have learned about the refugee claim process after being in Canada for several weeks. He filed his claim on July 20, 2019. THE RPD DECISION [7] The RPD panel held that the Appellant was not a Convention refugee under section 96 of the Immigration and Refugee Protection Act (IRPA), because being a victim of criminality does not constitute a ground of persecution under the 1951 Convention Relating to the Status of Refugees ("Refugee Convention"), and the Appellant did not demonstrate that he had a nexus to any other Convention ground. The panel further held that the Appellant was not a person in need of protection under section 97 of the IRPA because there was insufficient credible evidence to establish that he faced, on a balance of probabilities, a risk to his life or a risk of cruel and unusual treatment or punishment in Mexico. STANDARD OF REVIEW [8] The standard of correctness applies to this appeal as set out by the Federal Court of Appeal in Canada (Citizenship and Immigration) v Huruglica.3 This requires an independent assessment of the refugee claim to determine whether the RPD was correct in its findings and determinations. While deference can be afforded to the RPD on specific issues when it enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, such an advantage does not arise in the present case. ISSUES [9] The determinative issues in this appeal are whether the RPD erred in its credibility assessment and in its finding that there was insufficient evidence to establish, on a balance of probabilities, that the Appellant would face a risk to his life, or a risk of cruel and unusual treatment or punishment, and in its determination that the allegations in the Appellant's claim do not fall under a ground of persecution in the Refugee Convention. [10] The Appellant has not submitted new evidence in this appeal and is not requesting an oral hearing before the RAD. ANALYSIS [11] After considering the Appellant's arguments and conducting an independent review of the entire record, including listening to the recording of the proceeding before the RPD, I agree with the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. The Appellant's allegations do not fall under one of the Convention grounds of persecution. The Appellant was not credible with respect to certain allegations which are central to his claim. The remaining evidence does not establish, on a balance of probabilities, that the Appellant faces a risk of harm from the soccer promoter or his associates. Section 96 and the grounds of persecution [12] While the Appellant seeks protection under both sections 96 and 97, he does not provide any arguments in his memorandum on how his allegations fit under one of the grounds of persecution in the Refugee Convention. The Appellant alleges that he is at risk of harm by the soccer promoter and his associates because he witnessed illegal activity at the house in XXXX where he was held against his will. The RPD was correct in finding that these allegations, if true, would make the Appellant a victim of criminality, which does not have a nexus to a Convention ground. It is well established in the jurisprudence that "victims of crimes are not a social group as defined in the Convention".4 I also agree that the Appellant has not shown that he has a nexus to any other Convention ground. Therefore, the Appellant has not established that there is a serious possibility that he would be persecuted in Mexico. The Appellant's credibility [13] I agree with the RPD that the Appellant was not credible with respect to certain allegations that are central to his claim, including that he was held against his will, and that the soccer promoter threatened to "make him go away". Allegation of being held against his will [14] The Appellant was not credible with respect to his claim that he was held against his will or "practically kidnapped" by the soccer promoter, because he retained his mobile telephone during his entire ten-day stay and did not make any attempts to call the police. Despite the Appellant's belief that he was not allowed to have a telephone because he never observed the other soccer players with a telephone, the soccer promoter and his associates never inquired about or confiscated the Appellant's telephone. Moreover, the Appellant used the telephone to call his parents and allowed other soccer players to make calls, but nobody ever attempted to call the police. [15] I do not accept the Appellant's explanation that he never reported the soccer promoter to the police because he did not know whether the police were corrupt and associates with a criminal group. The portrayal of the police as potentially associated with the soccer promoter's alleged criminal activity is speculative, and the Appellant's failure to seek help with his telephone is not consistent with his own claim that he was being held against his will. Even if the Appellant was too traumatized to call the police, as he now argues in his memorandum, this does not explain why he did not ask the other soccer players or his parents to contact the police on his behalf. [16] Lastly, I am not satisfied that the other incidents alleged by the Appellant demonstrate, on a balance of probabilities, that he was held against his will. The Appellant specifically alleges that the doors of the house were kept locked, and that his request to visit his parents after one week was denied. There is nothing particularly suspicious about the doors to a house being kept locked. Despite the Appellant's insistence that the soccer promoter would not grant him permission to visit his parents, they eventually picked him up from the home. This evidence does not establish, on a balance of probabilities, that the Appellant was "practically kidnapped" and held against his will. Alleged threat to make the Appellant disappear [17] The RPD was correct to draw a negative inference from the absence of any reference in the letter from the Appellant's parents of the allegation contained in his Basis of Claim Form (BOC), that the soccer promoter threatened to make the Appellant "disappear" when his parents came to pick him up in XXXX. The Appellant was explicit in his BOC that the soccer promoter directed the threat at him when his parents picked him up. Contrary to the BOC narrative, however, the Appellant's parents wrote in their letter to the RPD that the soccer promoter directed unspecified threats and intimidation towards them when they attended the house, and they did not mention a threat to make the Appellant disappear. [18] There is no merit to the Appellant's argument that the difference between the BOC and the letter from the Appellant's parents constitutes a play on words by the RPD, or that the RPD sought to confuse or discredit the Appellant by raising the discrepancy. The RPD's role is to specifically put these types of discrepancies to the Appellant in order to assess his credibility. The RPD was correct to note the differences between the two accounts, and in doing so it did not display zealousness or microscopic analysis. When the discrepancy was put before the Appellant at the RPD hearing, he was unable to provide an explanation. The discrepancy is significant because it is the only concrete threat of harm which the soccer promoter allegedly directed at the Appellant. Additional allegations [19] Even if I were to accept the balance of the Appellant's allegations as credible, they are insufficient to establish, on a balance of probabilities, that the Appellant faces a danger of torture, or a risk to his life or a risk of cruel and unusual treatment or punishment if he were to return to Mexico. Alleged mistreatment [20] The treatment of which the Appellant described included having to share a bedroom with four other soccer players, sleeping on mattresses on the floor, having to clean the bedroom and bathroom, not caring about whether the players were eating well, and being asked to practice soccer in the garage. Even if I were to accept that these allegations are true, they do not fall within the harm described in s. 97 of the IRPA. [21] Nor do I accept that the "professional abuse" alleged by the Appellant falls within section 97 of IRPA. The Appellant asserts that it is unfair that the soccer promoter was going to retain a percentage of his salary from the soccer team. However, the Appellant voluntarily entered into the agreement with the soccer promoter, and the terms of agreement are unrelated to the harm he allegedly subsequently experienced during his ten-day stay in XXXX. Alleged criminality [22] Lastly, I am not satisfied, on a balance of probabilities, that the events witnessed by the Appellant during his ten days at the house in XXXX constitute criminal activity that placed him at risk of harm. According to the Appellant, he witnessed men dropping off garbage bags and boxes in the garage of the house in XXXX. While he never saw the contents of the bags and boxes, he believes that it was drugs based on the conduct of the drivers, which he found suspicious because they came and left quickly. He also overheard the soccer promoter speaking on the telephone about transferring large sums of money into several accounts, and witnessed him searching the internet for how to conduct untraceable transactions. I agree with the RPD that the Appellant's assertion that this constituted dangerous criminality that put him at risk is speculative, and not supported by the evidence. I therefore find that the Appellant has not established, on a balance of probabilities, that he witnessed illegal activity at the house in XXXX. Alleged pursuit [23] Contrary to the Appellant's belief, the evidence does not establish, on a balance of probabilities, that he was pursued by the soccer promoter after his departure from the house in XXXX. The Appellant confirmed in testimony that he never had any direct encounters with the soccer promoter or his associates after his departure from the house in XXXX, but believes that he was being pursued because on about April 25, 2018, he saw a Toyota pickup truck parked on the street close to his home which resembled one he saw during his ten days with the soccer promoter. The Appellant noted that the licence plate was from the same state, but he did not identify the name of the city or the licence plate number. Nor could the Appellant determine whether somebody was in the truck because the windows were tinted. The Appellant's parents also received a number of telephone calls from a number they did not recognize and therefore did not answer. Without further evidence linking to the soccer promoter to the pickup truck or to the anonymous calls, this evidence alone does not establish, on a balance of probabilities, that the Appellant was being pursued. [24] In summary, the RPD was correct in its determination that the Appellant's allegations do not fall within one of the grounds of persecution in the Refugee Convention, that he was not credible with regards to certain allegations that were central to his claim, and that the remaining evidence was insufficient to establish, on a balance of probabilities, that the Appellant faces a risk of harm from the soccer promoter or his associates. CONCLUSION [25] For the reasons outlined above, the Appellant has not established a serious possibility that he would be persecuted in Mexico, nor that, on balance of probabilities, that he would face a danger of torture, or a risk to his life or a risk of cruel and unusual treatment or punishment. [26] I therefore dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection.5 (signed) "John Helis" John Helis September 19, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 111(1)(b) & 111(1)(c) [IRPA]. 2 IRPA s. 111(1)(a). 3 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93. 4 Lozandier v. Canada (Citizenship and Immigration), 2009 FC 770 at para. 15; Rizkallah v. Canada (Minister of Employment and Immigration) (1992), 156 N.R. 1 (F.C.A.). 5 IRPA s. 111(1)(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB9-05816 RAD.25.02 (April 04, 2019) Disponible en français 9 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 (April 04, 2019) Disponible en français