MC1-05604

RAD File No. / No de dossier de la SAR : MC1-05604 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 November 24, 2021 Date de la décision Panel Me Ezzeddine Saidi Tribunal Counsel for the person who is the subject of the appeal Me Armando Javier Machado Rubio 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 (the appellant) is a citizen of Mexico. He is appealing the decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection on the grounds that he did not establish a prospective risk, that the alleged risk is generalized, and that he has an internal flight alternative (IFA) in the cities of Reynosa, Puebla and Mérida. [2] The appellant alleges that he fears retaliation from members of the Los Zetas Cartel (the Cartel), who could go after him if he returns to Mexico. [3] In his appeal memorandum, the appellant argues that the RPD erred in its analysis of his case because he was not in the same circumstances as other Mexicans. He submits that if he returns to Mexico, he will be pursued and tracked down by Cartel members. He adds that the proposed IFA is not viable because Cartel members want to go after him. [4] The Refugee Appeal Division (RAD) will analyze the following issues: whether the RPD erred in assessing the appellant's prospective risk and whether the risk alleged by the appellant is generalized. [5] I conclude that the RPD's decision is correct. [6] The appeal is dismissed. FACTUAL BACKGROUND [7] The appellant alleges that on XXXX XXXX, 2019, while returning home after attending a soccer game, he was assaulted and robbed by persons who identified themselves as being members of Los Zetas Cartel. He states that the criminals allegedly threatened to go after him and his family if he filed a complaint with the police. He adds that they took his identification card, which includes information about him like his name, and primarily his address. [8] He alleges that he hid at home until XXXX XXXX, 2019, when he left his country to come to Canada, where he filed the refugee protection claim before the Immigration and Refugee Board of Canada. ROLE OF THE REFUGEE APPEAL DIVISION [9] My role is to examine all the evidence and determine whether the RPD's decision is correct.1 After conducting my own analysis of the record including listening to the audio recording of the hearing, I am of the opinion that the correctness standard of review must be applied. ANALYSIS Applicable legal provisions [10] The RPD found that the appellant had not established a nexus to a Convention ground. It decided to assess the case under paragraph 97(1)(b) of the Immigration and Refugee Protection Act (IRPA). The appellant is not contesting the RPD's conclusion in that regard. The events alleged by the appellant do not reflect a nexus to any of the Convention grounds. Accordingly, I am analyzing this case under subsection 97(1) of the IRPA. The RPD's conclusion is correct. The appellant did not establish a prospective risk [11] The RPD concluded that the appellant did not demonstrate that Cartel members were interested in pursuing him. It concluded that there was no prospective risk to the appellant should he return to Mexico. [12] The appellant argues that he was the victim of a robbery and faced Cartel members directly. They assaulted him and threatened to kill him if he reported this event to the police. He adds that while the Cartel did not bother his family, he fears these criminals in the event of a return to Mexico, because they have his information and address, so they could go after him again.2 [13] I am of the opinion that the RPD's conclusion is correct. [14] First, the evidence shows that the assault and robbery the appellant was the victim of was not a planned act by Cartel members against him. Asked to explain why he was targeted by Cartel members on XXXX XXXX, 2019, the appellant stated, [translation] "they devote themselves to hurting people, taking their money, and if you show any resistance, you can get killed."3 The appellant added and confirmed the RPD's inference that it is unfortunately true that it was a coincidence that he was in the wrong place at the wrong time.4 It means that the attack on the appellant was not an act targeted or intended by Cartel members against the appellant in particular. In other words, it was a criminal act committed by Cartel members that could have been committed against any other person who could have passed by at the same time and place where the appellant was. [15] Second, the evidence shows that the appellant did not previously know the Cartel members. When asked by the RPD how he knew that it was members of the Zetas Cartel who assaulted and robbed him, the appellant stated that one of his assailants told him before leaving that they were Zetas.5 Nor does the evidence show that the members of this Cartel knew the appellant beforehand. I consider that this information is important in demonstrating that Cartel members did not personally target the appellant in their actions on XXXX XXXX XXXX 2019. [16] These first two considerations will also have an impact on the generalized risk analysis, as will be shown later. [17] Third, the evidence shows that Cartel members did not show an interest in pursuing the appellant. While these criminals took the appellant's identification card, which he stated contained personal information about him, such as his name and address, Cartel members did not go looking for him at his home while he was still in Mexico and never approached his family members. The evidence shows that Cartel members asked the appellant to keep quiet about what had happened on XXXX XXXX, 2019, primarily not to file a complaint with the police, or they would go after him and his family. The Cartel members' threat to harm the appellant and his family was conditional on his silence and not reporting their actions to the police. [18] The appellant testified that he stayed in hiding in his home from XXXX XXXX to XXXX XXXX, 2019. Based on his testimony, his agents of harm knew his address, so if they wanted to go after him or his family members, they would have done so. The RPD asked him, moreover, to explain what could have prevented his agents of harm from coming to get him when he was at his parents' home between XXXX XXXX and XXXX XXXX XXXX 2019. The appellant replied that they could have come after him where he was hiding, and he saw no reason that would have prevented them. He added that they did not attack him in his hiding place, which the Zetas also knew about, because he did not make a complaint to the police, as they had asked. The appellant agreed with the RPD that Cartel members did not go after him because he did not go to the police and that there were no other reasons that would prevent Cartel members from going after him while he was in Mexico. In other words, the appellant himself acknowledged that Cartel members could have gone after him if they had been motivated to do so, and nothing would have prevented them.6 [19] Furthermore, the appellant testified that his family members were never approached by Cartel members, in connection with the XXXX XXXX, 2019, incident, either to go after them directly or to seek information about the appellant, although the agents of harm knew where the appellant's family lived.7 Since XXXX XXXX, 2019, neither the appellant nor his family has received any threats or calls from these criminals. It has now been more than two years since this incident. [20] Contrary to his argument, the appellant did not confront the Cartel members, but did not resist at all when he was attacked, which he testified had saved his life.8 His explanation that the interest of the Cartel members is to harm him again is unfounded and insufficient. These criminals asked the appellant not to report them. The appellant did not file a complaint with the police. They did not look for him again or approach his family. I am of the opinion that the appellant was the victim of an isolated crime. He was not targeted by the Cartel. This explains why the agents of harm did not even attempt to go after him or his family afterwards. [21] I consider that the appellant did not establish, on a balance of probabilities, that Cartel members are interested in pursuing or going after him if he returns to Mexico. Therefore, he did not demonstrate, on a balance of probabilities, a prospective risk in the event of a return to Mexico. The RPD's conclusion is correct. Risk alleged by the appellant is generalized [22] The appellant alleged that he was afraid of being attacked again by the Cartel members, of being robbed or that they would be able to go after him since they could identify him. The RPD considered that the appellant's alleged risk is generalized and that he failed to establish a personalized risk. It concluded that the risk raised by the appellant was no different from the one faced by the rest of the Mexican population. [23] The appellant submits that he was not in the same circumstances as other individuals from Mexico [translation] "given the interaction he had with Cartel members."9 He adds that the criminals have his identification card and could locate him and go after him. [24] I do not agree with the appellant. [25] As demonstrated above, the appellant did not know the Cartel members beforehand. According to his testimony, he met them for the first time on XXXX XXXX, 2019. He claims that it was purely coincidental that he found himself in front of them, adding that he was in the wrong place at the wrong time. It is also clear from the evidence, as shown above, that the incident experienced by the appellant was not planned and that the criminals did not personally target the appellant. The RPD concluded that the attack of the appellant is part of a crime phenomenon that is quite widespread in Mexico. I agree with the RPD. Thus, to be a person in need of protection, the Federal Court of Appeal rules in Prophète that a claimant must show, on a balance of probabilities, that his removal to his country of origin would subject him personally, in every part of their country, to a risk to his life or to a risk of cruel and unusual treatment or punishment that is not faced generally by other individuals in or from this country of origin.10 [26] I do not accept the appellant's argument that having had an [translation] "interaction" with Cartel members is sufficient to establish that his risk is personal or makes it different from what may be experienced by the rest of the Mexican population, and therefore justifies his risk of being robbed or attacked again by the Zetas in connection with the XXXX XXXX, 2019, incident. To clarify, the term [translation] "interaction" used by the appellant does not reflect what really happened on XXXX XXXX, 2019, according to the appellant's testimony. The appellant did not do anything or react to the Cartel members when he was assaulted and robbed, in order to protect his life, as it appears in the evidence. I consider that the incident of XXXX XXXX, 2019, does not have any particularities that make it different from other crimes that take place in Mexico. The objective evidence shows that crime is a widespread phenomenon in Mexico and that cartels are dangerous and aggressive in this country. This evidence shows that Mexico has had high levels of crime for decades,11 affecting the entire population. The appellant does not explain, in the circumstances of his case, how or why being attacked once, by coincidence, by members of this Cartel, puts him personally at risk of being attacked again if he returns to Mexico. Nor does he demonstrate why he considers that his future risk would be any different from what the rest of the population in Mexico may experience. The evidence shows that the Cartel members had threatened him that if he filed a complaint with the police, they would then go after him. As I stated above, their threats were conditional on his behaviour, that of reporting them to the police. I consider that in the circumstances of this case, it is only if he had made or would make a complaint to the police that his risk could become personal. Since he did not file a complaint, Cartel members did not go after him or his family. The XXXX XXXX, 2019, incident occurred over two years ago now, without any further action by Cartel members against the appellant or his family. The evidence demonstrates the Cartel members' lack of interest in the appellant. [27] I consider that the onus is on the appellant to establish, on a balance of probabilities, that in the event of removal to his country of origin, he would be subjected to a continuing or future risk, in other words, that he would be subjected to a personalized risk. He must demonstrate that this risk is personalized and that it is not generally faced by other individuals living in or from Mexico. I am of the opinion that the appellant did not discharge his burden. The appellant claims to fear being robbed again by Cartel members since they took his identification card. This fear is unfounded in this case. It was established by the appellant's own admission that the incident of XXXX XXXX, 2019, was a coincidence, that is, that it was not planned against him. Furthermore, it was not followed by any other actions or behaviours by the agents of harm that could show their interest in going after the appellant again. In this regard, the appellant did not show that the criminals attempted to pursue or go after him after the XXXX XXXX XXXX 2019, incident. Cartel members have not attempted to communicate with him since this isolated act on XXXX XXXX, 2019. [28] I consider that the risk alleged by the appellant is not personal. While he fears being robbed should he return to Mexico, he did not establish that this risk is related to the XXXX XXXX, 2019, incident. I am of the opinion that appellant did not demonstrate a genuine, future risk related to what he underwent on XXXX XXXX XXXX 2019. Moreover, it means that his fear of being robbed, if he returns to Mexico, is part of the phenomenon of crime that prevails in Mexico. The appellant did not establish, on a balance of probabilities, that this risk is different from what other Mexicans may experience. It is a generalized risk. In my view, the RPD's conclusion is correct. Internal flight alternative [29] In light of the foregoing and considering that the appellant did not demonstrate that Cartel members would go after him if he returned to Mexico and did not establish a prospective risk, I find it unnecessary to analyze the IFA issue. Allegation unrelated to the case [30] In paragraph 17 of his memorandum, the appellant submits that he fears returning to Mexico because he witnessed [translation] "a homicide that the appellant considers was committed by these members."12 In my opinion, this is an argument that is unrelated to the case at hand. The appellant never alleged that he witnessed a homicide. I consider this to be an error in the appellant's arguments that I am not taking into account but had to mention. AMENDMENT OF THE NATIONAL DOCUMENTATION PACKAGE ON MEXICO [31] The National Documentation Package on Mexico was amended after the date of the RPD decision and after the date of the appeal memorandum. I made sure to refer to tabs that predate the RPD decision and the appellant's memorandum. CONCLUSION [32] I am of the opinion that the RPD's decision is correct. The appellant did not establish a prospective risk in the event of his return to Mexico. The risk he alleges of being robbed is generalized. DECISION [33] I dismiss the appeal and confirm the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Ezzeddine Saidi Me Ezzeddine Saidi November 24, 2021 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII). 2 Appellant's memorandum, paras. 35-42. 3 Audio recording of the hearing on June 30, 2021, at minute 72 to 73. 4 Audio recording of the hearing on June 30, 2021, at minute 73 to 75. 5 Audio recording of the hearing on June 30, 2021, at minute 35. 6 Audio recording of the hearing on June 30, 2021, at minute 59 to 62. 7 Audio recording of the hearing on June 30, 2021, at minute 34. 8 Audio recording of the hearing on June 30, 2021, at minute 72. 9 Appellant's memorandum, para. 31. 10 Prophète v. Canada (MCI), 2009 FCA 31, para. 3. 11 National Documentation Package on Mexico, September 29, 2021, Tab 7.10: Organized Crime and Violence in Mexico. 2020 Special Report. University of San Diego. Justice in Mexico. July 2020, page 12. 12 Appellant's memorandum, para. 17. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC1-05604 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