MB7-08565

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 File No. / N° de dossier de la SAR : MB7-08565 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX Appelant(e)(s) Appeal Considered / Heard at Montréal, Quebec Appel instruit à Date of Decision March 28, 2019 Date de la décision Panel Normand Leduc Tribunal Counsel for the Appellant(s) Me Alfredo Garcia Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) Ministre REASONS AND DECISION INTRODUCTION [1] XXXX XXXX XXXX, a citizen of Mexico, is appealing the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim. [2] He is presenting new evidence in his appeal and requesting that a hearing be held before the Refugee Appeal Division (RAD). DETERMINATION OF THE APPEAL [3] Under paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the determination of the RPD, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [4] In his Basis of Claim Form, the appellant, who worked as a XXXX XXXX in the city of Zihuatanejo in the state of Guerrero, alleges that he fears the members of a criminal organization who attack taxi drivers and steal cars. [5] The appellant alleges that he was threatened by armed individuals in his XXXX in October 2016 and November 2016. He claims that he saw these individuals again in March 2017 in the city of Zapopan, in the state of Jalisco, where he was staying with his sister. [6] On XXXX XXXX XXXX 2017, the appellant left Mexico for Canada, where he claimed refugee protection. [7] The RPD rejected the refugee protection claim on the grounds that the appellant's allegations were not credible, specifically because his behaviour after the threats were received was apparently inconsistent with that of a person who fears persecution. [8] Before the RAD, the appellant submits that the RPD erred in assessing his credibility, for reasons that will be detailed later under the Analysis heading, if necessary. [9] For these reasons, the appellant is asking that the RAD set aside the RPD's determination and grant him refugee protection, or refer the matter to the RPD for re-determination. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [10] The role of the RAD is to review RPD decisions by applying the correctness standard of review after conducting its own analysis of the record in order to determine whether the RPD erred, as submitted by the appellant. The exception to this rule concerns the RPD's findings in the assessment of the credibility of or the weight to be given to the oral evidence it hears, in cases where it enjoys a meaningful advantage. The RAD thus owes deference to the RPD's findings (Canada v. Huruglica, F.C.A., No. A-470-14). Reasons will be provided in my analysis if I find that the RPD enjoyed a meaningful advantage. NEW EVIDENCE [11] Pursuant to rule 29 of the Refugee Appeal Division Rules, before the RAD on June 19, 2018, the appellant filed three documents as new evidence under subsection 110(4) of the IRPA, which indicates that: On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [12] In addition to the explicit conditions of subsection 110(4) of the Act, the RAD must also take into account the implicit conditions concerning the admissibility of new evidence, as established by the Federal Court of Appeal in Singh (M.C.I. v. Parminder Singh, 2016 FCA 96), specifically, criteria for assessing the credibility and relevance of new evidence. [13] Document a) is an undated newspaper article from an unspecified source, and it is titled: [translation] "They identify three of those murdered on Friday the 13th in Zihuatanejo," according to the translation provided. The appellant submits that this article reports the murder of his brother, Imer, who is also a taxi driver in Zihuatanejo. [14] Given that it is undated and comes from an unknown source, I do not accept this document into evidence. In addition, based on the grounds for the dismissal of the appeal on the issue of an internal flight alternative (IFA), which will be discussed below, this document, which does not provide details on the death of the appellant's brother, is not relevant to this case. [15] Document b), dated April 14, 2018, is a death certificate for the appellant's brother. This document came after the rejection of the refugee protection claim by the RPD and indicates that the appellant's brother [translation] "was shot" to death. I accept it into evidence before the RAD. [16] Document c) is a statement that is allegedly from the appellant, although it is not signed or dated, which confirms the fact that his sister told him about the death of his brother, XXXX. Once again, I am not of the opinion that this unsigned and undated document is relevant to this case, and for this reason, I do not accept it into evidence. HEARING BEFORE THE REFUGEE APPEAL DIVISION [17] Subsection 110(6) of the IRPA states that: [18] The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [19] I am of the opinion that the document accepted into evidence does not meet the criteria set out above, specifically because it does not raise a serious issue with respect to the appellant's credibility and is not central to the decision. [20] As it will be discussed under the Analysis heading, the determinative issue in this case is not the credibility of the appellant's allegations, but the issue of an IFA for him in Mexico. [21] For these reasons, I conclude that there is no cause to hold a hearing before the RAD. ANALYSIS [22] Having analyzed all the evidence presented, including listening to the recording of the hearing held before the RPD, and the RPD's reasons for decision, I am of the opinion, with respect, that the RPD's finding regarding the credibility of the appellant's allegations is erroneous. [23] In my opinion, the omissions, contradictions and inconsistencies raised by the RPD are not significant enough to undermine the credibility of the appellant's allegations. [24] However, I am of the opinion that, considering the appellant's allegations about the incidents that he suffered as being credible, there is cause to further assess the issue of an IFA for the appellant in Mexico. [25] Throughout the hearing before the RPD, the appellant was asked questions about the possibility of settling specifically in Mexico City, although the RPD did not address it in its decision. [26] The RAD sent a notice to the appellant's counsel inviting him to file submissions on the issue of an IFA in Mexico City for the appellant. The appellant's counsel sent his written submissions on February 27, 2019. [27] The test to be applied to assess an IFA was set out by the Federal Court of Appeal in Rasaratnam1 and Thirunavukkarasu,2 and these decisions indicate clearly that the test to be applied to determine whether an IFA exists is two-pronged: i. ... 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. ii. 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. [28] Both prongs must be established to find that an IFA exists. [29] When asked whether he could settle in Mexico City, the appellant responded that he could not, because he stated that [translation] "I'm scared, and I don't trust anyone anymore." When asked whether there were other reasons for not settling in Mexico City, the appellant answered that he does not know anyone there or have the financial means to live there. [30] I am of the opinion that the evidence presented establishes that the criminals whom the appellant fears would not have any interest in finding the appellant in a place like Mexico City. [31] The evidence establishes that criminals used the appellant's XXXX on November 14, 2016, to commit vehicle theft. The appellant reported these facts to the public ministry, but was unable to identify the thieves. The appellant testified that these thieves tried to revisit or approach him the next day and that he saw them again when he was in his father's village, Coahuayutla, and then at his sister's home in Zapopan, in the state of Jalisco. [32] The appellant testified that he fears these criminals in Mexico who are [translation] "car thieves." He stated that criminals attack taxi drivers in Zihuatanejo. He also entered into evidence newspaper articles reporting murders, specifically of taxi drivers, committed in Zihuatanejo (Exhibit D-18, in a bundle). Moreover, two of his brothers were allegedly killed in their taxis, but in my opinion, nothing indicates that what happened to his brothers, and particularly to his brother, XXXX, in 2018, a year after the appellant left Mexico, is related to the appellant and the criminals whom he fears. [33] Therefore, I am of the opinion that nothing in the evidence presented establishes that these criminals would have any interest whatsoever in finding the appellant in Mexico City, if he is no longer a XXXX XXXX in Zihuatanejo. The appellant does not know the names of these criminals, and they did not ask the appellant for anything; apparently, they used his XXXX XXXX services to commit their crime. I repeat that I cannot see the interest that these criminals would have in pursuing the appellant in Mexico City, instead of simply using, for example, another taxi driver's services to commit their crimes. [34] In a similar vein, nothing indicates that the fact that these criminals allegedly tried to find the appellant at his home the next day on November 14, 2016, or to approach him when he was in his XXXX in downtown Zihuatanejo would be for reasons other than to use his XXXX again, whether it be to commit a crime or not. [35] The appellant submits that it was probably not accidental that he saw these criminals again in the two places where he was hiding, that is, in his father's hometown and at his sister's home. However, these criminals never approached his sister or anyone in his father's village to find the appellant. It must be noted that these encounters were either by chance or because of the criminals' alleged knowledge about the appellant's family members. In that respect, the appellant has no family members in Mexico City. [36] With respect to the first prong of the IFA analysis, I am therefore of the opinion that the evidence presented does not establish, on a balance of probabilities, that the appellant would face a serious possibility of persecution or that it is likely that he would be subjected to a risk to his life, to a risk of cruel and unusual treatment or punishment or to a danger of torture if he had to settle in Mexico City, Mexico. [37] With respect to the second prong of the IFA analysis, that is, the reasonableness of the IFA, the appellant testified that he could not settle in Mexico City because he does not know anyone there, and he does not have the financial means to stay there. [38] In my opinion, the appellant's explanations are not reasonable. [39] I am of the opinion that not knowing anyone in Mexico City does not make the possibility of settling there objectively unreasonable. Currently, the appellant is a 35-year-old man who has work experience, particularly in the XXXX and XXXX XXXX (see question 8 of the IMM-5669 form, page 69 of the RPD record). In my view, it would not be unreasonable for him to settle in Mexico City, where he could find a job and support himself, just as he was able to do in the past in the United States, where he lived for a number of years. [40] Furthermore, there is no law or rule, for example, which would prevent the appellant from settling in Mexico City. [41] I am therefore of the opinion that it would not be unreasonable for the appellant to seek refuge there, considering all the circumstances, including those that are particular to him. [42] Consequently, in light of the foregoing, I conclude that the appellant failed to establish that the RPD committed errors that would justify the RAD setting aside the determination. REMEDY [43] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX is neither a "Convention refugee" under section 96 of the IRPA nor a "person in need of protection" within the meaning of section 97 of the IRPA. [44] The appeal is dismissed. Normand Leduc Normand Leduc March 28, 2019 Date IRB translation Original language: French 1 Rasaratnam v. Canada (1992) 1 F.C. 706 (C.A.), p. 710. 2 Thirunavukkarasu v. Canada (1994) 1 F.C. 589 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB7-08565 8