TB9-05935

RAD File / Dossier de la SAR : TB9-05935 TB9-05936 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision August 7, 2020 Date de la décision Panel Julie Corry Tribunal Counsel for the persons who are the subject of the appeal Marcos D. Ortiz 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] XXXX XXXX XXXX and XXXX XXXX XXXX (the Appellants) are citizens of Mexico appealing against the decision of the Refugee Protection Division (RPD) that they are neither "Convention refugee(s)" nor "person(s) in need of protection". [2] I confirm the RPD's determination and dismiss this appeal.1 [3] The RPD member was correct in her determination that the Appellants had an internal flight alternative (IFA) in Cancun, Monterrey, and Hermosillo. Background [4] The Appellants relied on their Basis of Claim forms (BOC) and provided no accompanying narratives. [5] They say they fear being killed by criminals as a result of their involvement in the firing of two Los Zetas members at a factory where they worked as security guards. [6] Mr. XXXX was physically attacked and threatened with death if he did not leave the country. ADMISSIBILITY OF NEW EVIDENCE PRESENTED ON APPEAL [7] In their appeal record, the Appellants submit four exhibits of new evidence, under subsection 110(4) of the IRPA. [8] The new documents submitted are annexed to an affidavit sworn by Mr. XXXX on March 20, 2019, and include: * A: An unsigned copy of his BOC form that was before the RPD; * B: The interpreter's declaration and the port of entry notes dated January 22, 2017, that were part of the RPD record; * C: Mr. XXXX work ID card; * D: A letter dated December 24, 2018, from Mr. XXXX daughter, with an English translation. Test for admissibility of new evidence [9] Subsection 110(4) of the IRPA states that new evidence will only be admitted where that evidence: 1) arose after the rejection of the claim by the RPD; 2) was not reasonably available; or 3) the appellant could not reasonably have been expected in the circumstances to have presented the evidence, at the time of the rejection. I cannot admit new evidence unless it falls under one of these three categories.2 [10] If the new evidence meets the above requirements, I must then assess whether the evidence is credible, relevant, and new.3 Decision on the admissibility of the new evidence Mr. XXXX affidavit is inadmissible, except for paragraph 12 [11] I find that all of the affidavit sworn by Mr. XXXX on March 20, 2019, is inadmissible, except for paragraph 12, which provides an explanation for why Mr. XXXX daughter's letter was not produced before the RPD. [12] The rest of the affidavit does not say anything new, it just explains issues that arose during Mr. XXXX testimony before the RPD and adds explanations for the quality of his testimony. [13] As the Appellants made no submissions under Rule 3(3)(g)(iii) of the RAD Rules regarding this affidavit, I will treat paragraph 12 as supplementing submissions to their memorandum of appeal as opposed to new evidence. [14] The Appellants argue that the sworn affidavit explains why Mr. XXXX misunderstood one crucial question in regard with the number of assailants that beat him in Mexico. They submit that it is very important that the RAD considers the fragility of Mr. XXXX state of mind. [15] They go on to argue that the content of the sworn affidavit including its exhibits demonstrate the consistency of the case as well as the consistency with Mr. XXXX oral testimony. They say that the RPD only rejected his answers because of a missing letter that is included with this appeal. They add that Mr. XXXX also corroborated that there were two people who assaulted his nephew, Mr. XXXX. [16] In my opinion, the contents of the affidavit do not meet the requirements of sec. 110(4) of the IRPA and as such, I do not need to consider the relevance, newness or credibility of these parts of the affidavit. [17] The Federal Court of Appeal finds that the explicit conditions set out in subsection 110(4) of the IRPA are inescapable, must be met, and leave no room for discretion on the part of the RAD.4 In short, there is clear legislative intention not to authorize any new evidence on appeal before the RAD other than in very specific and carefully defined circumstances, as the role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.5 [18] Mr. XXXX affidavit is inadmissible because it is not new evidence and it simply includes arguments that belong in the Appellants' memorandum. The inclusion of affidavits like this one serves no useful purpose. [19] There is nothing in this affidavit, except for paragraph 12, that arose after the rejection of the claim by the RPD, that was not reasonably available or that the Appellants could not reasonably have been expected in the circumstances to have presented at the time of the rejection. [20] Paragraph 12 of the affidavit does provide new information, explaining why Exhibit D was not produced before the RPD, yet I must point out that this information would have been better placed in the Appellants' memorandum. [21] I conclude that all of the affidavit sworn by Mr. XXXX on March 20, 2019, is inadmissible, except for paragraph 12. Exhibits A and B are inadmissible [22] Exhibit A is a copy of Mr. XXXX BOC form, albeit unsigned. Exhibit B is the interpreter's declaration and the port of entry notes dated January 22, 2017. These documents formed part of the RPD record and as such are not new evidence. [23] As the requirements under sec. 110(4) of the IRPA have not been met, I do not need to consider the relevance, newness or credibility of these documents. For these reasons, Exhibits A and B are inadmissible. Exhibit C is admissible [24] Exhibit C is Mr. XXXX work ID card. There was a slightly unclear copy of this same card before the RPD, with a translation. The RPD had noted that the copy was hard to decipher, and that an original had not been provided. [25] The Appellants submit that Mr. XXXX has since found the original of his work ID card and has submitted it to the RAD. They argue that the RPD was unclear about her assessment of this ID card but that it is obvious that she disbelieved the Appellants were working as security guards for the company they alleged they were working for. [26] I have to disagree with the Appellants on this point, as the RPD specifically stated: "While I accept that they were working in a factory - most likely in security as they testified to - after that, just about everything else falls." [27] Regardless of this disagreement, I am accepting Mr. XXXX ID card as admissible as the original was not reasonably available before the rejection of the claim, and now it is. In my opinion, this makes it new. It comes from a credible source, and in my opinion, it is relevant as it goes to corroborating the Appellants' testimony that they worked as XXXX XXXX for the company identified on the card. [28] For these reasons, Exhibit C is admissible. Exhibit D is admissible [29] Exhibit D is a letter dated December 24, 2018, from Mr. XXXX daughter, with an English translation. [30] This letter was referred to by Mr. XXXX during the RPD hearing, but he did not provide a copy of it. The RPD did not accept Mr. XXXX explanation and did not find his assertion credible, that: "All she did was send me that letter." The RPD recognized that corroborating evidence is not required, but that it can be useful especially when there are very serious credibility concerns, and that none was submitted. [31] The Appellants say that the RPD only rejected Mr. XXXX answers because of this missing letter, which is now included with this appeal. They add that this letter is crucial for accepting his credibility. At paragraph 12 of Mr. XXXX affidavit, he explains that: "I just found out that my counsel's office omitted my cousin's letter in his fax dated January 15, 2019. Please find enclosed the missing letter from my cousin to my uncle XXXX XXXX XXXX. I believe my uncle's credibility was affected by this administrative error. (Exhibit "D")." [32] I accept the Appellants' explanation as to why the letter was not produced before the rejection of their claim and find that Mr. XXXX daughter's letter is admissible. [33] In my opinion, it is new in the sense that the Appellants could not reasonably have been expected in the circumstances to have presented it at the time of the rejection, as their counsel omitted to include it in their disclosure before the RPD. [34] The letter appears to come from a credible source, although it is not a sworn statement and is not accompanied by any form of ID. It reads like a letter sent to Mr. XXXX, without the express intent of being used as evidence to support his claim, but simply a letter from a daughter to her father. It is relevant as it speaks about the factory where Mr. XXXX worked, and that there are individuals who have been seen outside the factory "waiting for you to come out." [35] For these reasons, Exhibit D is admissible. Request for a hearing [36] The Appellants requested an oral hearing. [37] Under subsection 110(6) of the IRPA, when evidence presented on appeal has been found to be admissible, it must be determined whether: 1) it raises a serious issue with respect to the credibility of the person who is the subject of the appeal; 2) whether it is central to the decision with respect to the refugee protection claim; and 3) whether it would justify allowing or rejecting the refugee protection claim. If the answer is yes, the RAD may hold a hearing. [38] The Appellants argue that Mr. XXXX affidavit explains why he was unable to remember specific dates and why the quality of his testimony was poor. They add that this affidavit and its exhibits corroborate some of the inconsistencies raised by the RPD. As I have mentioned above, I found Mr. XXXX affidavit inadmissible, except for paragraph 12. As such, I will not consider this affidavit in my assessment under 110(6) of the IRPA. [39] With respect to exhibits C and D that I have admitted, and in light of the three determinative criteria noted above, I find that they do corroborate the credibility of the Appellants' allegations, but I would not go so far as to say that they raise a serious issue with respect to the Appellants' credibility. In my opinion, exhibits C and D do not have a serious impact on the credibility of the Appellants, these exhibits are not central to the decision of this claim, and do not justify allowing the claim. [40] The reason being is that, as I have analyzed and explained further below, I am able to assess the credibility of the evidence in the file and have enough with the evidence before me to make my decision. [41] As a result, there is no need to hold a hearing on the new evidence admitted. Procedural fairness and appearance of bias [42] Before going on to address the RPD's assessment of the claim and consequent findings, I must address the Appellants' concerns about procedural fairness and the appearance of bias by the RPD member. [43] The Appellants cite jurisprudence that states: "If the duty of fairness is breached in the process of decision-making, the decision in question must be set aside."6 [44] In a revised memorandum signed on July 21, 2020, the Appellants cite a Federal Court decision that in turn cites the Baker decision, which provides clear guidelines concerning the content of the duty of fairness in administrative decision-making.7 They say they believe that the aggressive questioning of the RPD member to Mr. XXXX breached the duty of fairness and the decision must be set aside. [45] They explain that Mr. XXXX was intimidated by the RPD member and became so upset that he was unable to recall facts and he essentially shut down in front of her. They add that the RPD member continued her aggressive questioning and forced further mistakes from Mr. XXXX fragile memory. Finally, the Appellants submit that the RPD member had a predetermined mind set on the case and tried to find microscopic errors during their testimony. [46] In my analysis, I must determine whether there was a reasonable apprehension of bias, impartiality or an appearance of unfairness. In other words, what would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude?8 [47] I have listened carefully to the recording of the RPD hearing, and I cannot agree that the tone of the RPD member's questioning breached the duty of fairness. In my opinion, the questioning was edgy at times, but I would not go so far as to say aggressive. When confronting Mr. XXXX with inconsistencies between his BOC and his testimony, the RPD member at times expressed impatience, but this was not out of line with what you would expect in a hearing room. [48] Based on my listening, Mr. XXXX was a nervous witness, and the RPD member did not make attempts to put him at ease. That being said, the grounds for an apprehension of bias must be substantial and, in this case, I find that the Appellants have not met this threshold. [49] I will now address the merits of this appeal. ANALYSIS OF THE MERITS OF THE APPEAL Standard of review [50] When reviewing the RPD decision, I am required to independently assess all the evidence and determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law.9 Nexus-Section 96 of the IRPA [51] The RPD found no nexus between the Appellants' basis of claim, that being their fear of criminality, vendetta and threats from the Los Zetas. This was conceded by the consultant who represented them, and as such, the claim was assessed under section 97 of the IRPA. [52] I see no reason to interfere with this finding and, in my opinion, it is correct. Credibility [53] The credibility issues raised by the RPD had to do with inconsistencies and omissions from the BOCs, and especially Mr. XXXX, about the dates of assaults, the number of assailants, and injuries sustained, compared with his testimony, and that of Mr. XXXX. [54] At the beginning of her analysis, the RPD stated that: "On a balance of probabilities, the panel did not find the claimants were credible. While I accept that they were working in a factory - most likely in security as they testified to - after that, just about everything else falls."10 [55] The Appellants mainly argue that Mr. XXXX was intimidated by the RPD member's aggressive questioning and that this is why he could not remember the date of his assault and misunderstood the question about the number of assailants. They point out that the facts surrounding their basis of claim and what happened to Mr. XXXX to make them want to flee Mexico was well documented in the POE notes and that his BOC was consistent with these notes. [56] As I mentioned above, at times during the RPD hearing, Mr. XXXX was a nervous witness. In my opinion, his testimony about his assaults, whether there was one or two, and the number of assailants was confused and inconsistent with his BOC, the POE notes in the file and Mr. XXXX testimony. [57] That being said, it is my opinion that the determinative issue in this appeal is the availability of an IFA and as such, I will not further assess the RPD's conclusion on credibility. [58] Later on in her reasons, the RPD stated: "Even if I did find you credible with respect to your denunciation or with respect to your allegations, I would have still found that there are internal flight alternatives available for these claimants given their particular circumstances, be it Cancun, Monterrey or Hermosillo."11 [59] This is the approach I will take as well and I will now go on to assess the RPD's conclusion on IFA. Internal Flight Alternative (IFA) The RPD did not err in assessing the viability of an IFA [60] The availability of an IFA was raised as an issue during the RPD hearing and Cancun, Monterrey or Hermosillo were identified. The Appellants were asked questions about this issue. [61] The RPD rejected the Appellants' claim, concluding that they had an IFA in Cancun, Monterrey or Hermosillo. It is my opinion that the RPD member was correct in her IFA assessment. [62] The Appellants do have an IFA in Cancun, Monterrey or Hermosillo, because in my opinion, they will not be at risk from the criminals who threatened them in their hometown of Tulancingo, in the state of Hidalgo. [63] This IFA assessment is based on a two-prong test. Once the IFA has been raised, the onus of proof is on the Appellants to establish that 1) there is a serious possibility that they will be persecuted in the part of the country identified as an IFA or that on a balance of probabilities, they would be subjected personally to a danger of torture or to a risk to their lives or a risk of cruel and unusual treatment or punishment in the IFA; 2) the conditions in that part of the country must be such that it would be objectively unreasonable or unduly harsh, in all the circumstances, including those particular to the Appellants, for them to seek refuge there.12 First prong- The risk faced in Cancun, Monterrey or Hermosillo [64] Mr. XXXX was asked by the RPD if there was any reason why he could not relocate and live in one of the proposed IFAs and he answered that there was not. When he was later asked the same question by his consultant, he said he did not know about the criminality in those other places. [65] When Mr. XXXX was asked, he said he could not relocate because the Los Zetas are everywhere, that he did not know about the criminality in Cancun or Monterrey, but that there was lots of criminality in Hermosillo. [66] The RPD found that there was no credible or trustworthy evidence before it to indicate that the Los Zetas had an interest in these Appellants or an ongoing interest in tracking them down. [67] The RPD also noted that the documentary evidence indicated that the Los Zetas are a criminal organization in decline and no longer was as powerful as it was during the height of its dominance in 2011 to 2012. [68] As a result, the RPD concluded that the Appellants had not established, on a balance of probabilities, that the Los Zetas would be interested in locating and harming them in the proposed IFA locations. [69] The Appellants did not make submissions on the proposed IFAs in their memorandum. [70] In the new evidence that I admitted, Mr. XXXX daughter's letter says: We know that the situation still is difficult for you to come back; the stubborn of the Zetas do not stop of doing bad things. You saw what happened with the factory, I just asked my friend how are they doing after the burn and he told me that they are fixing it little by little and that they have seen them several times around there waiting for you to come out.13 [71] The daughter's letter says there are individuals waiting outside the factory to see if Mr. XXXX comes out, but she has no way of knowing who exactly is out there and why they are out there. For all anyone knows, they could be waiting for someone else. [72] I also think it is significant that neither of the Appellants' families have been contacted or harassed in any way. There is no other evidence that these Appellants are still being sought. [73] In my opinion, I agree with the RPD that there is insufficient evidence that the criminals who threatened the Appellants in Hidalgo would have the means and the motivation to seek them out in the proposed IFAs. [74] The country conditions documentation that was referred to by the Appellants' consultant during the hearing showed that Cancun had the least amount of criminality, and I would suggest that this would be the most viable IFA for these Appellants. [75] As a result, I find that the RPD's conclusion was correct and that, on a balance of probabilities, the Appellants would not be personally subjected to a danger of torture or a risk to their lives or to a risk of cruel and unusual treatment or punishment in Cancun, Monterrey or Hermosillo. Second prong-Cancun, Monterrey or Hermosillo are reasonable [76] The Appellants have the onus of demonstrating that the IFA is objectively unreasonable or unduly harsh. [77] Case law has established a very high threshold when determining whether the proposed IFA is unduly harsh. In Ranganathan, the Federal Court of Appeal states the following: It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area.14 [78] The RPD found that considering the Appellants' testimonies and their work experience, it was reasonable for them to obtain employment in the proposed IFAs, also because they both speak Spanish. [79] On a balance of probabilities, the RPD concluded that the Appellants had viable IFAs in Mexico and they had failed to establish that the proposed IFA locations would not be safe and reasonable for their relocation. [80] I agree with the RPD for the same reasons, which I adopt as my own, and see no reason to interfere with this finding. [81] In conclusion, I have considered the Appellants' personal situation and find that the RPD was correct. The Appellants failed to prove that it would be objectively unreasonable for them to relocate to Cancun, Monterrey or Hermosillo. State protection [82] During the RPD hearing, the Appellants' consultant referred to Tabs 7.12, 7.13 and 7.14 of the NDP and the high number of reported homicides and kidnappings related to organized crime in Mexico and in the proposed IFAs. He argued that Mexico is unable to protect citizens who are targeted by organized crime. [83] The RPD found that the Appellants had not actually engaged the state in this regard and did not find them credible with respect to their denunciation to the police. As such, the RPD concluded that they had not rebutted the presumption of state protection. [84] The Appellants argued at page 58 of their appeal record that it is important for the RAD to revise all the documentary evidence that the RPD ignored with regards to state protection and current country conditions in Mexico. [85] Based on my confirmation of the RPD's finding of the existence of a viable IFA in Cancun, Monterrey and Hermosillo, there is no need to pursue with an analysis of state protection, beyond what has already been addressed within the IFA assessment above. RAD CONCLUSION [86] Having found that the Appellants have a viable IFA in Cancun, Monterrey and Hermosillo, I confirm the decision of the RPD that XXXX XXXX XXXX XXXX XXXX XXXX XXXX are neither Convention refugees nor persons in need of protection.15 [87] The appeal is dismissed. (signed) Julie Corry Julie Corry August 7, 2020 Date 1 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, s. 111(1)(a). 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, at para. 34-35. 3 Ibid, at paras. 38-49. The Federal Court of Appeal ruled that it is reasonable for the RAD to assess the new evidence having regard to the criteria set out in Raza (2007 FCA 385) related to the credibility, relevance and newness of the evidence. However, the Federal Court of Appeal specified that the requirement concerning the materiality of the new evidence should only be considered for the sole purpose of determining whether the RAD should hold an oral hearing pursuant to s. 110(6) of the IRPA. 4 Minister of Citizenship and Immigration v. Parminder Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraphs 38 to 51. 5 Ibid, paragraph 54. 6 Cipak v. Canada, 2014 FC 453, at paragraph 23. 7 Exhibit P-3, Appellants' Revised Memorandum signed July 21, 2020, page 5 or 6; Baker v. Canada (M.C.I.) (1999), 174 D.L.R. (4th) 193. 8 Ibid, para. 26. 9 Minister of Citizenship and Immigration v. Huruglica, 2016 FCA 93 (Huruglica). 10 Exhibit RPD-1, RPD Reasons, at p. 3, lines 19-21. 11 Exhibit RPD-1, RPD Reasons, at p. 6, lines 5-7. 12 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.); Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.). 13 See appeal record, p. 40, Exhibit D, paragraph 3. 14 Ranganathan v. Canada, [2001] 2 C.F. 164 (F.C.A.) at para. 15. 15 IRPA, sec. 96, 97(1), 111(1)(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-05935 TB9-05936 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