MB9-23574

RAD File No. / No de dossier de la SAR : MB9-23574 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 Montréal, Quebec Appel instruit / entendu à Date of decision August 25, 2020 Date de la décision Panel Mokhtar Lamani Tribunal Counsel for the person who is the subject of the appeal Me Julio Cesar Tulena Salom 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, a citizen of Mexico, is appealing the decision of the Refugee Protection Division (RPD) dated September 23, 2019, rejecting his refugee protection claim on the grounds that there is an internal flight alternative (IFA). [2] He alleges that the RPD erred a. in its assessment of the facts, by dismissing the appellant's version of the events,1 and b. in its finding that the appellant failed to demonstrate, on a balance of probabilities, that he would be personally subjected to a risk of persecution and to a risk to his life if he were to return to Mexico.2 [3] The appellant is asking the Refugee Appeal Division (RAD) to grant him refugee status or to refer the case to the RPD for re-determination by a differently constituted panel.3 [4] The determinative issue for the RAD, as was the case for the RPD, is the existence of an IFA in Mérida, Yucatan. DETERMINATION [5] The RAD confirms the RPD's determination and dismisses the appeal. BACKGROUND [6] According to his Basis of Claim Form (BOC Form), the appellant fears for his life because of death threats and extortion from his former girlfriend's father. [7] The appellant and his alleged assailant's daughter, XXXX XXXX, who had been romantically involved since April 7, 2017, ended the relationship on June 25, 2017, because XXXX XXXX left to work outside Colonia, the appellant's city of residence. [8] In January 2018, XXXX XXXX returned to Colonia, and when the appellant refused to see her again, her father accused him of raping his daughter and demanded 40,000 pesos from him, but the appellant did not have the money to pay. XXXX XXXX father then threatened to kill him. [9] The appellant claims to have reported the issue to the police on January 25, 2018, but they did nothing. [10] Feeling threatened, the appellant left in XXXX 2018 for Lazaro Cardenas, and on XXXX XXXX XXXX 2018, he flew to Canada to claim refugee protection. STANDARD OF REVIEW [11] The RAD reviews RPD decisions applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule arises when the RPD enjoys a meaningful advantage in assessing credibility.4 That said, the RAD's role is to determine whether, as argued by the appellant, the RPD did indeed err. [12] The RAD applied the correctness standard in this case. ANALYSIS [13] In a memorandum, the appellant writes in general terms that the RPD erred in all paragraphs of its decision, but he does not provide a relevant and detailed explanation of the RPD's errors. [14] This memorandum does not specifically challenge any particular findings by the RPD. Rather, it generally challenges the RPD's entire decision. It submits that the RPD erred in assessing his statement and that these errors require the RAD's intervention;5 yet it does not identify the errors or state where they are located, as required by subparagraph 3(3)(g)(ii) of the Refugee Appeal Division Rules. Internal flight alternative [15] In Rasaratnam6 and Thirunavukkarasu,7 the Federal Court sets out the test for assessing an IFA. It has two prongs: 1. ...the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.8 2. Moreover, conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.9 [16] Both prongs must be established to conclude that an IFA exists. The first prong [17] The RPD concluded [translation] "based on the evidence before it, that the claimant failed to demonstrate there was a serious possibility of persecution or that he would be subjected, on a balance of probabilities, to a risk under subsection 97(1) in Mérida."10 [18] The appellant submits that this finding is unreasonable11 and that the RPD erred regarding the facts, since it found the appellant's testimony credible, given that it was clear and spontaneous throughout the hearing. However, the RPD was of the opinion that his accounts were not enough to prove the information supporting his claim.12 [19] The appellant argues that the man who is looking for him has the ability to find him anywhere in Mexico and the interest in doing so, since he is a powerful person in the state of Chiapas.13 [20] The RAD agrees with the appellant that the RPD found his testimony credible; it even assessed the candour of his testimony and stated, in its reasons, that it did not contain any omissions or significantly contradict his story.14 That is not the problem. [21] The RPD proposed the city of Mérida as an IFA and was satisfied, as set out in the case law mentioned above at paragraph 15, that, on a balance of probabilities, there was no serious risk of the appellant being persecuted in that city. [22] In that regard, the appellant explained in his testimony that he did not try to permanently relocate to another region of Mexico because he believed that his agent of persecution, who has family in Cancún, Mexico City, Sinaloa, Tijuana and Campeche, could find him anywhere in Mexico. [23] The IFA proposed by the RPD, Mérida, is not on the list of cities where the agent of harm has family. In addition, the distance between it and the state of Chiapas (where the agent of harm has influence) is 596 km as the crow flies. [24] The appellant's explanations about the influence of his agent of harm confines that influence to the municipality of Ixhuatan, in the state of Chiapas, and as the RPD states, even though the agent of harm has an interest in finding him, nothing in the submitted evidence or in the oral testimony indicates that the agent of harm's influence might extend to the entire country, including the state of Yucatan. [25] The appellant was unable to demonstrate how his agent of harm might find him. [26] Regarding the first prong of the IFA analysis, the RAD is of the opinion that the evidence presented does not demonstrate that there is a serious possibility of persecution for the appellant or a likelihood that he would be subjected to a risk to his life or a risk of cruel and unusual treatment or punishment, or to torture, if he had to move to Mérida in the state of Yucatan. [27] The RPD's finding is correct. The second prong [28] The RPD concluded that it would not be unreasonable, in all the circumstances, for the appellant to seek refuge in Mérida, in the state of Yucatan.15 [29] The RPD's findings regarding this prong are not being challenged. The RAD analyzed them, and they are correct. [30] In its selection, the RPD considered the fact that the appellant is Indigenous and from a rural community. It asked him about this and cited tabs in the National Documentation Package (NDP) on the precarious situation of Indigenous people in Mexico and the discrimination against and poverty among them. [31] In addition, most Indigenous people are located in the southern and south-central regions of the country, and nearly half of the population who speaks an Indigenous language lives in three states in those regions, namely, Chiapas (whence the appellant comes), Yucatan (the proposed IFA) and Oaxaca. [32] The NDP on Mexico reports that Yucatan is the most peaceful state in the country.16 [33] According to his BOC Form, and confirmed in his testimony, although the appellant was unable to complete his secondary education and had worked only in agriculture, he speaks Spanish fluently and is strong-natured, particularly since he refused to remain in a relationship despite pressure and threats. He had the financial means to leave his country. [34] Taking all of this and the appellant's personal circumstances into account, the RPD concluded that he is still young (27 years old) and will be able to relocate to Yucatan, where there is a high concentration of Indigenous people and where he will also be able to find work. [35] The RAD is of the opinion that there is an IFA in Yucatan. Procedural fairness and the internal flight alternative [36] The appellant cites Maldonado at paragraph 10 of his memorandum and later submits that: [translation] procedural fairness must allow the decision-maker to consider the evidence, in its context, since the appellant provided an clear statement, based on cultural and educational level and his intellectual capacity, and even the panel agrees with the appellant's statements and written account.17 That being said, there is no longer anything that makes it possible to dismiss testimony that was clear and specific, and devoid of any intention to mislead the panel, that explains the objective fear and the serious risks if the appellant were forced to return to Mexico.18 [37] The RAD disagrees. [38] First, as stated above at paragraph 20, the RPD found the appellant's testimony credible and did not reject the refugee protection claim on the basis of credibility. [39] Next, when refugee protection claimants have a viable IFA in their country, their claims for international protection are rejected even if their testimony is found to be credible. [40] Finally, procedural fairness seeks to ensure that refugee protection claimants understand the proceedings, have a reasonable opportunity to tender any evidence that supports their claims and are given a chance to persuade the RPD that their claims are well-founded.19 [41] In this case, the RPD considered all of the evidence, and the appellant understood the proceedings, submitted evidence in support of his claim and had the chance to persuade that his claim was well-founded. Consequently, the RPD adhered to the principles of procedural fairness. [42] The RAD concludes that the RPD's decision is correct. CONCLUSION [43] The RAD dismisses the appeal and confirms the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Mokhtar Lamani Mokhtar Lamani August 25, 2020 Date IRB translation Original language: French 1 P-2, appellant's record, appellant's memorandum, para. 12. 2 Ibid., para. 13. 3 Ibid., memorandum's conclusions. 4 Canada (MCI) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (MCI), 2018 FC 1145. 5 P-2, appellant's record, appellant's memorandum, para. 28. 6 Rasaratnam v. Canada (MEI) [1992] 1 F.C. 706 (C.A.). 7 Thirunavukkarasu v. Canada (MEI) [1994] 1 F.C. 589 (C.A.). 8 Supra, endnote 6, p. 710. 9 Supra, endnote 6, pp. 709 and 711. 10 SPR-1, Refugee Protection Division (RPD) record, RPD's reasons, para. 23. 11 P-2, appellant's record, appellant's memorandum, para. 20. 12 Ibid., para. 22. 13 Ibid., para. 26. 14 SPR-1, RPD record, RPD's reasons, para. 8. 15 Ibid., para. 24. 16 SPR-1, National Documentation Package, Mexico (March 29, 2019), Tab 1.5: Results. Mexico Peace Index 2018, Institute for Economics and Peace. 17 P-2, appellant's record, appellant's memorandum, para. 24. 18 Ibid., para. 25. 19 Nemeth v. Canada (MCI) 2003 FCT 590, para. 10. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-23574 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