TC1-03274

RAD File / Dossier de la SAR : TC1-03274 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision October 19, 2021 Date de la décision Panel J. Pollock Tribunal Counsel for the person who is the subject of the appeal Marcela D Gonzalez-Rodriguez 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] These are my reasons for allowing the appeal of XXXX XXXX XXXX (the Appellant) and recognizing her as a person in need of protection. [2] The Appellant is a citizen of Mexico from XXXX, in the State of Mexico. She alleges that her intimate partner, E.S.O.,1 disappeared while working as a XXXX XXXX on his route from XXXX to Chiapas in XXXX 2017. She alleges a fear of those behind the disappearance. [3] The Appellant's claim was heard at the Refugee Protection Division (RPD) alongside her brother and his spouse, children, and in-laws.2 The Appellant did not rely on their allegations and put forward a separate claim. The RPD granted the claim of the Appellant's brother and his spouse, children, and in-laws, recognizing them as persons in need of protection. However, the RPD denied the Appellant's claim, finding that she does not have a nexus and that she has a viable Internal Flight Alternative (IFA) in Guadalajara. The RPD did not identify any credibility concerns. However, it found that the Appellant failed to establish, on a balance of probabilities, that her agents of harm possess the means and motivation to locate her in the IFA location, such that she faces a risk of torture, a personalized risk to her life or of cruel and unusual treatment or punishment. The Appellant argues that the RPD decision is incorrect. She has not submitted any new evidence on appeal, and I have no jurisdiction to hold a hearing.3 [4] My role is to look at all the evidence and decide if the RPD made the correct decision.4 Having independently assessed all the evidence, including the complete RPD hearing audio-recording, I find that the RPD's IFA determination is incorrect. In my view, the Appellant does not have access to a viable IFA in Mexico. I further find that the Appellant does not have access to state protection in Mexico and that she is a person in need of protection. DECISION [5] The appeal is allowed. I substitute my own decision that the Appellant is a person in need of protection. BACKGROUND AND PROCEDURAL ISSUES The Appellant's allegations [6] From XXXX 2017 to XXXX 2017, the Appellant alleges that she searched for E.S.O. throughout various cities in Mexico and that she provided information to the Mexican police. She alleges that the authorities were disrespectful and uninterested in her reports. She also alleges that E.S.O.'s family members warned her not to look for him anymore after E.S.O.'s mother was threatened at the site of a clandestine grave by men who warned her to stop searching for her son and threatened her with death. They also warned her not to speak to the press. [7] In XXXX 2017, the Appellant alleges that as she was about to give an XXXX to a XXXX, she received an anonymous telephone call warning her that she would be killed if she gave the XXXX. She also alleges that she received a video on her mobile telephone of a woman being tortured. After receiving this threat, she relocated to the state of Querétaro. Shortly thereafter, she was contacted by her previous landlord in XXXX who told her that three men visited her old apartment, tied up the new tenants, and warned that if the Appellant spoke to the press, she knows what would happen to her. She also alleges that her new employer received a call about her partner's remains which she interpreted as a threat against her life. There is no procedural fairness breach to the Minister [8] The Minister did not intervene in the Appellant's claim before the RPD or the Refugee Appeal Division (RAD). However, I am mindful that the Minister has a right to procedural fairness in appeals to which he has not intervened. Further to the Federal Court's decision in Alazar, I have considered whether "the case has materially shifted away from the RPD's decision and the appeal as it was framed by the [person subject to the appeal]" such that procedural fairness requires me to notify the Minister before rendering my decision.5 I find that no such issue has arisen. [9] In my view, there is no new issue that is legally and factually distinct from the grounds of appeal which cannot reasonably be said to stem from the issues on appeal as framed by the Appellant.6 The RPD determined the claim on the issue of IFA under section 97(1). In her Appeal Record, the Appellant argues that this RPD finding is wrong and also that she does not have access to state protection in Mexico. In my view, the determinative issues in the appeal before me have been raised in the Appeal Record. The Appeal Record was provided to the Minister,7 giving them sufficient notice of the live issues before me in this appeal. As such, there is no procedural fairness breach to the Minister in my finding that the Appellant is a person in need of protection. ANALYSIS The Appellant has credibly established her allegations, on a balance of probabilities [10] The RPD did not identify any credibility concerns in the Appellant's evidence, and it accepted that she is a victim of crime, as alleged.8 I agree. Having independently assessed the entire Record, I find that the Appellant's testimony about E.S.O.'s disappearance, the death threats, and the agent of harm's continuing pursuit is credible, on a balance of probabilities. She also provided credible corroborative evidence, including multiple letters of support consistent with her allegations. The RPD did not identify any credibility concerns with this evidence, and I have no reason to find otherwise on appeal. I find that the Appellant has credibly established her allegations, on a balance of probabilities. Unchallenged RPD finding that the Appellant lacks a nexus is correct [11] The RPD found that the Appellant's claim lacks a nexus to a Convention ground. 9 Counsel does not identify any error in this finding, and I find none in my independent assessment. I find that the Appellant does not face a serious possibility of persecution by reason of her race, nationality, political opinion, religion, or particular social group, and that there is no nexus to a Convention ground. Having failed to establish a nexus, the Appellant does not have a well-founded fear of persecution under section 96 of the Immigration and Refugee Protection Act (IRPA). As such, I have considered her claim under subsection 97(1) of the IRPA. The Appellant faces a personalized risk to life under subsection 97(1) in the IFA location [12] The RPD proposed Guadalajara as a viable IFA location. Once an IFA is proposed, it is the Claimant's burden to adduce evidence to show, on a balance of probabilities: (i) that they face a serious possibility of persecution or a subsection 97(1) risk in the IFA; or (ii) that it would be objectively unreasonable, in their personal circumstances, to relocate to the IFA.10 The RPD found that the Appellant has a viable IFA in Guadalajara because she has given up looking for E.S.O.11 The Appellant argues that the RPD's IFA assessment is incorrect. Having independently assessed the complete RPD Record, I find that the Appellant does not have a viable IFA in Mexico. Despite giving up her search for XXXX after relocating to Querétaro, the agents of harm continued their pursuit. In my view, the Appellant faces a personalized risk to her life that is not faced generally by others in Mexico, pursuant to subsection 97(1) of the IRPA. In my view, this risk extends to the IFA location. [13] The Appellant was personally threatened with death. The initial basis for this personal risk - demand for her to stay away from the media - is distinct from the nature of the risk itself - risk to life. There is a pattern of events that are connected through the agent of harm's threats and targeting. I find, on a balance of probabilities, that the Appellant is personally targeted for death. I further find that this risk to life is distinguishable in nature and degree from the risk of criminality faced generally by others in Mexico. I note that the question is not whether others could eventually find themselves in the Appellant's position but, rather, whether others generally are in that position now.12 She is subjected to a series of escalating death threats in Mexico in a way that others generally are not. The Appellant's risk to life is distinguishable in nature and degree from the risk of criminality faced generally in Mexico. [14] The agents of harm have threatened the Appellant by telephone, and they have approached her home. They orchestrated a brutal disappearance of her partner, threatening to kill anyone who speaks out about his death. The agents of harm knew where the Appellant relocated in Mexico and contacted her employer in an entirely different state.13 In my view, this demonstrates their continuing interest in the Appellant. Having considered all the evidence, I find that the agents of harm possess the motivation to locate the Appellant throughout Mexico, including in the proposed IFA location. [15] I further find that the agents of harm have demonstrated the means to locate the Appellant outside of XXXX. They successfully located her new place of employment in Querétaro. The RPD erred in failing to consider how this previous successful attempt to locate the Appellant demonstrates that the agents of harm possess both the means and motivation to locate her throughout Mexico, including in the proposed IFA location of Guadalajara. Having considered all the evidence, I find that the agent of harm's ability to locate the Appellant through her new employer after she relocated to an entirely different state weighs heavily in favour of a finding that they possess the means to locate her in Guadalajara. [16] I find that the Appellant faces a personal risk to her life in Guadalajara and that the proposed IFA location failed under the first prong of the test. The Appellant does not have access to operationally adequate state protection [17] Counsel argues that the Appellant does not have access to state protection in Mexico.14 I agree. Having independently assessed the complete Record, I find that the Appellant does not have access to operationally adequate state protection upon return to Mexico. [18] The Appellant sought protection from Mexican authorities on multiple occasions. She followed up with authorities in the search for her missing partner. However, the authorities did not provide her with any protection. The agents of harm continued their threats. Where the "documentary evidence situates the individual Claimant's experience as part of a broader pattern of state inability or refusal to extend protection, then the absence of state protection is made out."15 I find the documentary evidence supports such a pattern in the Appellant's circumstances. [19] The United States Department of State report indicates that there are "extremely low rates of prosecution" in Mexico.16 Municipal and state level police are ineffective, and they lack the resources to investigate crimes and victims may be required to gather evidence themselves and pay police officers to secure an arrest.17 Organized criminal groups are "implicated in numerous killings, acting with impunity and at times in league with corrupt federal, state, local, and security officials."18 [20] Based on my independent assessment, I find that the evidence is clear and convincing and rebuts the presumption of state protection in the Appellant's circumstances. CONCLUSION [21] The appeal is allowed. I substitute my own decision that the Appellant is a person in need of protection. (signed) J. Pollock J. Pollock October 19, 2021 Date 1 Personal identifiers have been removed, except where necessary to explain the reasoning of the decision. 2 The RPD misapprehended the Appellant's relationship with her co-claimants at paragraph 2 of its decision. According to the Appellant's BOC, she is the sister of Rafael not Victor. 3 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended, at ss. 110(6). 4 M.C.I. v. Huruglica, 2016 FCA 93, at para. 103. 5 Canada (MCI) v. Alazar, 2021 FC 637, at paras. 74-87. 6 Canada (MCI) v. Alazar, 2021 FC 637, at para. 84. 7 Refugee Appeal Division Rules, SOR/2012-257, Rule 3(2). 8 Exhibit RPD-1, RPD Record, RPD Decision, at para. 6. 9 Exhibit RPD-1, RPD Record, RPD Decision, at paras. 5-6. 10 Rasaratnam v. Canada (MEI), [1992] 1 FC 706; Thirunavukkarasu v. Canada (MEI), 1993 CanLII 3011 (FCA). 11 Exhibit RPD-1, RPD Record, RPD Decision, at paras. 15-18. 12 Correa v. Canada (MCI), 2014 FC 252, at para. 84. 13 Exhibit RPD-1, RPD Record, Exhibit 2.1, at p. 15, at lines 87-89; RPD hearing audio-recording, at 01:02:00. 14 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at paras. 32-33. 15 Zhuravlvev v. Canada (MCI), 2000 CanLII 17128, at para. 31. 16 Exhibit RAD-1, NDP for Mexico (29 September 2021), Item 2.1, at p. 2. 17 Exhibit RAD-1, NDP for Mexico (29 September 2021), Item 7.18, at para. 3.1. 18 Exhibit RAD-1, NDP for Mexico (29 September 2021), Item 2.1, at p. 2; Item 2.10, at para. 5; Item 7.18. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-03274 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