MB7-05902

RAD File / Dossier de la SAR : MB7-05902 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision April 11, 2019 Date de la décision Panel Veena Verma Tribunal Counsel for the person(s) who is(are) the subject of the appeal Carlos Hoyos-Tello Conseil(s) (de la/des) personne(s) 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) is a citizen of Mexico. He worked at a XXXX in Veracruz before fleeing for Canada in 2017. He claims that he was targeted and threatened by the drug cartel, Jalisco Nueva Generacion (JNG). He fears reprisals by JNG for his refusal to join them. He appeals a decision of the Refugee Protection Division (RPD) denying his refugee claim for reasons of credibility and internal flight alternative (IFA). [2] On appeal, the Appellant disputes some of the credibility findings made by the RPD. He submits that the RPD erred by relying on a written statement of a Canadian Border Services Agency (CBSA) official because the statement was not reviewed with or interpreted to him at the time it was written, as required by the principles of natural justice. He makes no submissions relating to the RPD's IFA findings. [3] For the reasons follow, while I agree that the RPD's credibility assessment had some errors, I find the RPD's IFA analysis is correct. Therefore, I confirm the RPD's decision that the Appellant is neither a Convention refugee nor a person in need of protection under the Immigration and Refugee Protection Act (the Act). ANALYSIS Scope of the Refugee Appeal Division's (RAD) Review [4] I will briefly address the Appellant's submissions on the RPD's credibility findings. I will not otherwise address the RPD's credibility findings because I find the determinative issue is IFA. [5] When reviewing the RPD decision, I am required to determine independently whether the RPD was correct in relation to each alleged error of law, fact, or mixed fact and law. I may defer to the RPD's credibility assessment of oral testimony, if I find that the RPD had a meaningful advantage in the circumstances.1 Having listened to the RPD hearing, I find no deference is warranted in the present case. RPD erred in assessing the Appellant's credibility [6] The Appellant made two submissions regarding the RPD's credibility assessment, which I will address in turn. First, I agree with the Appellant's submissions that the RPD was overzealous to impugn his credibility because he amended his Basis of Claim with additional information.2 This was an error. [7] Second, the RPD also impugned the Appellant's credibility because, when interviewed by a CBSA official, he did not name the gang that he feared and he stated that he had not been personally or directly threatened by anyone.3 [8] The Appellant states that the CBSA statement was produced to him the same day of the hearing contrary to the RPD Rules. He submits that the RPD erred by failing to accept his explanation for the omission and contradictions, namely, he did not have the benefit of an interpreter when he was interviewed by the CBSA official. He also submits that he was never given an opportunity to review the CBSA official's statement in order to correct any inaccuracies, and therefore, the RPD should not have given the statement significant weight. [9] Contrary to the Appellant's position, the CBSA statement was sent to him a week in advance of the hearing. His counsel acknowledged receipt of the document at the outset of the hearing, and raised no objection to it being entered as an exhibit.4 However, I agree with the rest of the Appellant's submissions. Having listened to the Appellant's testimony, he repeatedly stated that he does not speak or understand English well. He testified that the CBSA official did not offer him the services of an interpreter. Therefore, it is curious that the RPD states that the Appellant speaks English or that he did not have problems understanding the CBSA official.5 I find the RPD erred by misconstruing the Appellant's testimony and failing to consider language barriers he faced when assessing the written statement by the CBSA official. [10] The Appellant made no submissions on the RPD's remaining negative credibility findings, and there were many such findings.6 However, I do not need to address these findings because I have accepted the Appellant's evidence as credible in assessing the determinative issue of IFA. RPD correctly found the Appellant has an IFA [11] The RPD correctly assessed the Appellant's claim under section 97 of the Act because the Appellant's claim has no nexus with a Convention ground. [12] The test for an IFA is two-pronged. Once the IFA has been raised, the onus of proof is on the claimant to establish: 1) on a balance of probabilities, a risk to life or a risk to cruel and unusual treatment or punishment in the suggested IFA location; and 2) it is objectively unreasonable or unduly harsh, in all of the circumstances, for the claimant to move to the suggested IFA location.7 [13] At the hearing, the RPD identified Mexico City and Merida as possible IFAs, and ultimately found that the Appellant could relocate safely to either of these locations. [14] The Appellant made no submissions identifying any errors in the RPD's IFA analysis. I have conducted my independent review of the RPD record, including the Appellant's testimony and submissions before the RPD. In assessing whether there is a risk of harm to the Appellant in Mexico City or Merida, I considered the profile of the JNG and their motivation and ability to search for the Appellant throughout Mexico. [15] For the reasons set out at paragraphs 39 - 41 of the RPD's reasons, I find the Appellant has failed to discharge his onus under both prongs of the IFA test. There is insufficient objective evidence to support the Appellant's belief that he is on JNG's blacklist and they are able to find him anywhere in Mexico sooner or later. The documentary evidence entered by the Appellant states that the JNG has a growing national presence.8 The JNG is elsewhere described as a cartel having national reach with a presence in many provinces.9 But, I note that the documentary evidence does not identify the JNG as having a dominant presence in the Yucatan where Merida is located.10 The Appellant has failed to sufficiently demonstrate that the JNG has the ability to find him in Mexico City, or more particularly, in Merida. [16] Furthermore, there is no evidence that the JNG continues to be interested in the Appellant. In the two years since the Appellant arrived in Canada, there is no evidence that anyone from the JNG cartel has contacted his family or friends. While he testified that his wife and brother were in hiding two hours away from Veracruz, there is no evidence that other family members,11 neighbors, or friends who continue to live in Veracruz have been contacted about the Appellant's whereabouts. I find that the JNG is unlikely searching for the Appellant given his unremarkable profile and the passage of time. [17] Finally, the Appellant presented no evidence demonstrating that it is unreasonable or unduly harsh for him to move to Mexico City or Merida. CONCLUSION [18] I find the Appellant has a viable IFA in Mexico City or Merida. Pursuant to section 111(1)(a) of the Act, I confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. [19] The appeal is dismissed. (signed) Veena Verma Veena Verma April 11, 2019 Date 1 M.C.I. v. Huruglica, 2016 FCA 93, paras 70, 103. 2 RPD Decision, paras 16-19; Ex. P-2, Appellant's Record, Submissions, p. 15, para a. 3 RPD Decision, paras 29 - 34; Ex. RPD-1, RPD Record, Ex. 4, CBSA statement, p. 159. 4 RPD Hearing at 00:03:44 - 00:04:40. 5 RPD Decision, para 33. 6 Ibid., paras 12-15, 21-27. 7 Rasaratnam v. M.E.I. [1992] 1 F.C. 706 (C.A.) (QL), paras 8-10; Thirunavukkarasu v. M.E.I., 1993 CanLII 3011 (F.C.A.), p. 7. 8 Ex. RPD-1, RPD Record, Ex. 5, Document P-8, p. 167. 9 Ibid., Ex. 3, National Documentation Package for Mexico (31 August 2016), Item 7.7, p. 26. 10 Ibid., Ex. 3, National Documentation Package for Mexico (31 August 2016), Item 1.5; Item 1.6, p. 15; Item 7.7, pp. 26-27; Item 7.8, pp. 17, 32-33; Item 7.11, p. 2; Item 7.14; Item 7.15, pp. 2-3, 48. 11 Ibid., Ex. 1, Basis of Claim, p. 34. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MB7-05902 6 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 (September 18, 2018) Disponible en français