TB8-31617

RAD File / Dossier de la SAR : TB8-31617 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 Calgary, AB Appel instruit / entendu à Date of decision July 27, 2020 Date de la décision Panel Derek Vermette Tribunal Counsel for the person who is the subject of the appeal Diana Gallego 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] I dismiss this appeal from XXXX XXXX XXXX (XXXX or Appellant), a citizen of Mexico. He appealed the Refugee Protection Division's (RPD) decision that he is neither a Convention1 refugee nor a person in need of protection. [2] XXXX came to Canada seeking protection because he feared that the Federal Ministerial Police would harm him as a result of him witnessing four members of the Federal Ministerial Police murder a couple. [3] The RPD found that XXXX had an Internal Flight Alternative (IFA) - a safe and reasonable location within Mexico - in the cities of La Paz, Oaxaca, Cancun or Mexico City. XXXX argues on this appeal that the RPD erred by incorrectly applying the test for an IFA. He submits that the proposed IFAs are not safe and that it would be unreasonable for him to relocate to those cities. [4] I find that the RPD decision that XXXX is neither a Convention refugee nor a person in need of protection is correct. It is my determination that XXXX has an IFA in the cities of La Paz, Oaxaca, Cancun or Mexico City. DECISION [5] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [6] The following background information is taken from XXXX Basis of Claim (BOC) form, and his testimony at the RPD hearing. This background does not necessarily represent my findings of fact. [7] XXXX lived with his mother and brother in XXXX, Michoacán, Mexico. XXXX is a XXXX and he worked from home. When no one required his XXXX services, XXXX would collect XXXX and sell it as a side business. [8] On Friday, XXXX XXXX XXXX 2016, XXXX and his donkey travelled to the hills to collect XXXX. He was ready to leave at around 10:00 am, after having had collected XXXX for approximately four hours. He then heard crying and screaming. XXXX tied up his donkey and climbed to the top of the hill to find out what was happening. [9] Once at the top of the hill he saw that at a distance of about 200 metres, there were approximately four men dressed as civilians with bulletproof vests. They each had a large gun, and there were two white pick-up trucks. The men were hitting and punching a man. A woman was not being hit but she was screaming and crying. XXXX did not recognize any of the individuals. [10] XXXX saw the four men beating the man, who was blindfolded and handcuffed in the bed of one of the trucks. The woman was handcuffed but not blindfolded beside the truck. XXXX watched for approximately five minutes, when one of the men took out a handgun and shot the man in the head. Very quickly afterward a different man shot the woman with a handgun. [11] XXXX was shocked and stood up. The men saw XXXX, and called for him to come down. XXXX ran, and the men chased him. XXXX hid for hours. Finally, he made his way toward home and came across his dead donkey, carrying the XXXX he had collected, tossed to the side of the road. [12] XXXX believes the men were part of the Federal Ministerial Police because of their white trucks and weapons. According to XXXX XXXX the Federal Ministerial Police are corrupt because they work with people involved in the drug trade, including the local cartels of La Familia Michoacán and the Knights Templar Cartel. [13] The next day XXXX mother brought him a newspaper that showed two dead people. XXXX recognized the people in the photograph as the ones he had seen murdered the day prior. At around noon, a pick-up truck pulled up to the house, and XXXX quickly glanced out and recognized one of the men in the truck as one of the four men he saw the day prior. [14] XXXX brother answered the door, and there were two men who bought XXXX. The men asked XXXX brother if he was the only one who sold XXXX, and XXXX brother confirmed that he was. [15] XXXX hid in the house for the next two days. The next day the two men returned to the house, and confirmed with XXXX brother that he was the only one to sell XXXX. XXXX brother confirmed that he was, he became angry, and the men left. [16] Later that night some men came knocking and kicking at the door. XXXX mother looked out the window, and noticed they were driving a white pick-up truck. When they left, XXXX mother called the marines for help, but they did not answer. [17] The two men came back to the house, and XXXX mother spoke to them. They asked her questions about who collected the XXXX XXXX and XXXX mother became angry and insulted them. The men laughed at her and left. That night the men returned and beat the door. XXXX and his mother did not answer. XXXX mother called the marines but there was no answer. After fifteen minutes of terror the men left. [18] After this incident, XXXX decided that he could no longer be at home as he was putting his family in danger. Late that evening, he travelled to Mexico City. He stayed in a hotel for approximately twenty days, heading out only when necessary. XXXX knew if he went out for any length of time, he would be recognized as a non-resident of Mexico City as his identification showed that he was from Michoacán and his clothing (Sombrero) also identified him. In Mexico City, XXXX felt discriminated against since the residents fear and dislike those from Michoacán due to the criminality and reputation. Once XXXX was identified as being from Michoacán, residents told him to go back. [19] XXXX feared that the men he saw murder the couple would track him down as they work for the government. After about twenty days, XXXX had to leave the hotel for financial reasons. He began staying at a bus station. [20] XXXX met a man at the bus station, and the man suggested XXXX go to Canada. XXXX asked his brother to sell his cows so he would have money to fill out the application. [21] XXXX did not seek protection in Mexico City because he did not think the police would believe him. He has no evidence to prove that the Ministerial Police members were corrupt. XXXX also did not trust the authorities in Mexico City because he has heard that they are connected to the Ministerial Police Force in Michoacán. [22] XXXX left Mexico for Canada on XXXX XXXX XXXX 2017. [23] The men continued to come around XXXX mother's house looking for XXXX XXXX In early XXXX 2017, XXXX mother was so scared that she told the men that XXXX was in Canada. Every time XXXX family called the marines for help they did not answer. [24] XXXX mother and brothers moved approximately five to seven kilometers away to get away from the Ministerial Police Force and the Knights Templar cartel (who now use another name). The move did not help. XXXX brother was approached by a member of the Ministerial Police Force and was asked where XXXX was. XXXX brother indicated that XXXX was in Canada. The man did not believe this, and he hit XXXX brother with the butt of his gun. [25] XXXX fears that if he is forced to return to Mexico he will be located and will be tortured, harmed or killed, because he was a witness to two murders and he can recognize their faces. XXXX believes he is not safe anywhere in Mexico because the Ministerial Police have connections with other authority branches and with the cartels. XXXX believes that the Ministerial Police Force and cartels can travel all over Mexico. ANALYSIS [26] I will briefly summarize the RPD's decision and XXXX arguments as to why he believes the RPD decision is wrong, before I set out the reasons for my decision. Summary of the RPD decision [27] The RPD decided that XXXX had viable IFAs in the cities of La Paz, Oaxaca, Cancun or Mexico City, and that this was determinative of XXXX refugee claim under section 96 or 97 of the Immigration and Refugee Protection Act.2 [28] With respect to the first prong of the IFA test, the RPD found that XXXX had failed to establish a serious possibility of persecution or a risk of harm, on a balance of probabilities, in the proposed IFAs of La Paz, Oaxaca, Cancun or Mexico City. The RPD determined that the agents of persecution or harm would either not be able to locate XXXX, or would not have any interest in locating XXXX outside of the town which he previously resided. The RPD supported its finding by noting that XXXX had alleged that the agents of harm knew everyone's movements at any time, and knew who comes and goes from the country. However, the RPD noted that this was inconsistent with the fact that XXXX had lived in Mexico City for approximately one month, including in a bus station, a very public place, all the while the Federal Ministerial Police did not locate him there and still continued to look for him at his family house. The RPD also reasoned that the agent's ability to locate XXXX family when they moved only five or seven kilometres away did not establish that they have the means or motivation to locate XXXX across Mexico. The RPD noted that the agents of persecution did not know on their own that XXXX had left the country, and that they continued to search for him at his family house despite being told he had left the country. The RPD concluded that the agents would not even know if XXXX returned to the country, and noted that the agents had not attempted to locate XXXX other than where his family lives. The RPD found that there was no objective evidence to support XXXX allegation that people from Michoacán face discrimination in Mexico City, a multiethnic and multicultural city. The RPD also found that Michoacán people are not persecuted outside their state or that they face a risk of harm under section 97. The RPD concluded that the fact that XXXX came from Michoacán does not render the IFAs unsafe. [29] With respect to the second prong of the IFA test, the RPD concluded that XXXX had not established that the IFAs were unreasonable. The RPD noted that XXXX is a member of the majority ethnic, religious and linguistic groups in Mexico. The RPD also noted that XXXX was enterprising when it came to his employment, having found work when he was in the United States, Mexico and then in Canada. The RPD determined that XXXX medical problem with his back did not render the IFAs unreasonable as he would have access to medical care and there is no evidence that he would not be able to find work with accommodations. The RPD concluded that XXXX medical condition would not jeopardize his life or safety if he is required to return to Mexico. The RPD noted that XXXX did not provide any other reasons as to why it would be unreasonable for him to relocate to the proposed IFAs. [30] For all of these reasons, the RPD decided that XXXX was neither a Convention refugee nor a person in need of protection. Why XXXX believes the RPD decision is wrong [31] XXXX argues that the RPD erred in its application of the IFA test. XXXX submits that instead of determining whether the evidence demonstrated that XXXX faced a serious possibility of being persecuted in the IFAs, the RPD determined whether the evidence demonstrated that XXXX would be persecuted in the IFAs. By doing so, XXXX argues that the RPD applied a higher standard of proof than the law requires. It is XXXX position that his evidence was sufficient to demonstrate that he faced a serious possibility of being persecuted in the IFA locations. [32] XXXX argues that the RPD erred by relying on evidence that XXXX lived in Mexico before fleeing to Canada, but ignored the fact that he was living in hiding in Mexico City. It is submitted that the RPD erred in finding that XXXX had access to a safe IFA, as that finding was based on him living in hiding for a short time in Mexico City without encountering his agents of persecution. In addition, XXXX submits that relocating to the IFAs would require XXXX to hide his location from his family, which renders any IFA unreasonable. [33] XXXX submits that the RPD erred by speculating that the Federal Ministerial Police would not pursue him in the IFA locations. XXXX points out that the Federal Ministerial Police continued to harass XXXX family for his whereabouts after they had been told he was in Canada, and found XXXX family when they relocated, which shows that they have an interest in continuing to pursue XXXX XXXX XXXX also argues that his family will divulge his whereabouts, so it is not open to the RPD to find that the Federal Ministerial Police would not know if he had returned to Mexico. It is also argued that the RPD erred by making improper implausibility and credibility findings in not believing that XXXX was in hiding when he was in Mexico City. XXXX argues that it is speculative for the RPD to have found that the Federal Ministerial Police will not travel to the proposed IFAs. [34] XXXX argues that the RPD did not consider whether the discrimination that XXXX would face in the IFA locations as a result of him being Michoacán would render those IFA locations unreasonable under the second prong of the IFA test. XXXX argues that the RPD therefore failed to consider his personal circumstances, specifically the discrimination he would face. My decision [35] My role is to look at all the evidence and decide if the RPD made the correct decision.3 After conducting an independent assessment, I find that the RPD arrived at the correct decision, for the following reasons. [36] The existence of an IFA is fatal to any refugee claim. If a claimant can find safety from persecution by fleeing within their country, then they are not entitled to Canada's surrogate protection. This is because a claimant must be a refugee from a country, not from a particular region of a country. [37] The test to be applied in determining whether there is an IFA is two-pronged.4 Firstly, the Immigration and Refugee Board must be satisfied, on a balance of probabilities, that there is no serious possibility of persecution in the part of the country to which it finds an IFA exists, and no risk to life or risk of cruel and unusual treatment or punishment or torture. Secondly, the conditions in that part of the country must be such that it would not be unreasonable in all the circumstances, including those particular to XXXX, for him to seek refuge there. The threshold to show that the IFA is unreasonable requires nothing less than the existence of conditions which would jeopardize the life and safety of XXXX, and actual and concrete evidence of such conditions is required.5 [38] Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with XXXX to show that he does not have an IFA. [39] At the start of the hearing, the RPD gave notice to XXXX and his counsel of the issues that would be discussed during the hearing, and those issues included IFAs to La Paz, Oaxaca, Cancun and Mexico City.6 [40] Before turning to the IFA test, I note that there is a lack of evidence with respect to the identity of the agents of harm. XXXX has presumed that it is the Federal Ministerial Police, and some cartels that are known to associate with the Federal Ministerial Police. This is based on XXXX witnessing members of the Federal Ministerial Police carrying out the extrajudicial killing he witnessed. However, just because he saw members of the Federal Ministerial Police commit a crime, does not mean that the Federal Ministerial Police, as an organization, is after XXXX. It could be just those four rogue members that are after XXXX. This is an important point because the arguments about the powers of the Federal Ministerial Police, as an organization, or about cartels that associate with the organization of the Federal Ministerial Police, may not even be applicable if the agents of persecution are limited to the four members acting without authorization on their own. [41] I will deal with the first prong of the IFA test. I find that the RPD was correct in concluding that there is no serious possibility of XXXX being persecuted in the part of the country identified as an IFA, or that, on a balance of probabilities, he would not be subjected personally to a danger of torture or a risk to his life or to a risk of cruel and unusual treatment or punishment in the part of the country identified as the IFA. [42] XXXX has argued that the RPD erred in applying the IFA test, and specifically when the RPD member stated in her oral reasons, "I find there is no evidence before me which would indicate that you would be unsafe outside of your previous town."7 XXXX argues that the RPD member should have referred to whether there was a "serious possibility" rather than the higher standard of whether XXXX "would be" unsafe. I reject XXXX argument for the following reasons. The RPD member properly set out the test for the first prong of the IFA test, referring to "serious possibility". In the next paragraph of the transcribed oral reasons the RPD member sets out her finding, "With respect to the safety of the internal flight alternatives, I find that you have failed to establish a serious possibility of persecution or a risk of harm on a balance of probabilities in the proposed internal flight alternatives of Mexico City, La Paz, Cancun or Oaxaca."8 The RPD member then discussed her reasons for making this finding. The fact the RPD member did not repeat the words "serious possibility" each and every time she had the opportunity to do so does not render her decision incorrect. Reasons, particularly those delivered orally, cannot be held to a standard of perfection. The RPD member's decision must be read as a whole, and when one reads the decision as a whole, including her finding and the reasons in support of the finding, it is clear the RPD member was cognizant of and applied the correct "serious possibility" standard. [43] XXXX argues that the RPD erred by relying on evidence that XXXX lived in Mexico before fleeing to Canada, but ignored the fact that he was living in hiding in Mexico City. I disagree with XXXX argument. When reading the decision as a whole, it is clear that the RPD member is drawing attention to the fact that the agents of persecution do not have the ability to locate XXXX outside of his family home. The RPD member acknowledged that XXXX was in Mexico City for one month, and noted that part of that time was spent in a very public place, a bus station. XXXX says he was hiding in the bus station. However, the important point made by the RPD member was that the agents of persecution did not even know he had left the family home, as they were still seeking him out at the family house. The RPD also notes that, similarly, the agents of harm did not even know XXXX had left for Canada, and then when they were told he had left, they continued to seek him out at the family house in order to determine whether he had returned. The point the RPD member was making was that the agents of persecution do not have the knowledge of XXXX whereabouts, even in a general sense of knowing when he had left the family home. [44] XXXX argues that if he were to return to Mexico his address would be recorded when he applies for a voter card, and he would be required to hide his whereabouts from his family as they have a history of divulging his whereabouts to the agents of harm. XXXX submits that the RPD erred by speculating that the Federal Ministerial Police would not pursue him in the IFA locations. I disagree with these arguments. I find that even if the agents of harm were to find out XXXX whereabouts, there is still insufficient credible evidence to establish that they are interested in locating and harming him in one of the proposed IFA locations. [45] In this regard, I recognize that the viability of an IFA cannot be determined solely by distance between XXXX home and the proposed IFAs. However, there is nonetheless an obvious difference between when the agents of persecution followed XXXX family to their new house five to seven kilometres away, and extrapolating from this that the agents of persecution would then be motivated or capable of pursuing XXXX in the proposed IFAs of Mexico City (464 kilometres away from XXXX), Oaxaca (917 kilometres away from XXXX), La Paz (1,657 kilometres away from XXXX) or Cancun (2,080 kilometres away from XXXX). In other words, I do not accept the argument that because the agents were willing to travel five to seven kilometres to continue their inquiries of XXXX family, that it therefore follows that they would be willing to travel anywhere to pursue XXXX. Quite simply, their willingness and ability to travel a few kilometres is not good evidence, by itself, of their willingness and ability to travel up to 2,080 kilometres. [46] XXXX argues that the RPD erred by speculating that the agents would not follow him to the proposed IFAs. I disagree. The RPD said there was no credible evidence to support that they would, and one must remember that the burden is on XXXX to demonstrate that they would follow him to the proposed IFA, according to the applicable standards (i.e., serious possibility and balance of probabilities). It is not sufficient simply to assert that they would, but rather there must be evidence to support that they would follow him on the basis of the applicable standards. It is up to XXXX to bring that evidence. As the RPD member succinctly stated, "Finally, there is no evidence before me that your agents of persecution or harm have attempted to locate you outside where your family lives. As I just explained, it is your burden to establish that an internal flight alternative is not available to you."9 [47] With respect to the second prong of the IFA test, I find that the RPD was correct in concluding that it is reasonable for XXXX to relocate to one of the IFAs. XXXX argues that the RPD did not consider whether the discrimination that XXXX would face in the IFA locations as a result of him being Michoacán would render those IFA locations unreasonable under the second prong of the IFA test. I disagree. The RPD specifically dealt with the example of discrimination that XXXX discussed, and then found that the example did not establish that people from Michoacán are discriminated against in Mexico City. Compelling evidence that XXXX would face discrimination in the other three IFA locations was not tendered. The RPD member correctly concluded that the threshold for the unreasonableness test was very high, and that actual and concrete evidence of such conditions was required. I adopt the reasons of the RPD member that XXXX circumstances demonstrate that the IFAs would be reasonable. The RPD member noted that XXXX was a member of the majority ethnic, religious and linguistic groups, and had an employment history that shows he would be able to assume employment in the IFAs. The RPD member also correctly considered XXXX personal medical circumstances, and found that his back issues would not render the IFAs unreasonable. [48] For all of the above reasons, I find that XXXX has not met his burden to show that he does not have an IFA in in the cities of La Paz, Oaxaca, Cancun or Mexico City. CONCLUSION [49] I 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. (signed) Derek Vermette Derek Vermette July 27, 2020 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, S.C. 2001, c. 27. 3Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 4 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (FCA). 5 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 at para. 15 (C.A.). 6 CD Audio, RPD Hearing, 00:25:00 to 00:25:55. 7 RPD Decision, p. 3, lines 45 to 46. 8 RPD Decision, p. 2, lines 40 to 49. 9 RPD Decision, p. 3, lines 41 to 43. --------------- ------------------------------------------------------------ ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-31617 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