MB9-23038

RAD File No. / No de dossier de la SAR : MB9-23038 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 9, 2020 Date de la décision Panel Me Toni Jedid Tribunal Counsel for the person who is the subject of the appeal Robin Dejardin 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 against the Refugee Protection Division (RPD) decision rejecting his refugee protection claim. [2] The appellant allegedly fears someone named XXXX and his associates who were involved in his sister's abduction. [3] The appellant submits that the RPD erred because it was biased against him. He submits that the RPD did not consider all of the evidence, notably the objective documentary evidence taken from the National Documentation Package (NDP). He submits that there is no internal flight alternative (IFA) for him in Mexico and that the RPD did not take his particular circumstances into account. In the RPD's opinion, Campeche and Yucatan are safe and reasonable IFAs for the appellant. [4] The determinative issues for the Refugee Appeal Division (RAD) are as follows: * Did the appellant demonstrate that there was a reasonable apprehension of bias on the part of the RPD member? * Did the RPD err in assessing the IFA in the proposed locations, namely, Campeche and Yucatan? [5] It is my opinion that the appellant did not discharge his burden of demonstrating that there was a reasonable apprehension of bias on the part of the RPD member. I am of the view that the RPD's decision is correct and that the appellant has an IFA in the proposed locations. DETERMINATION [6] I dismiss the appeal. The RPD was correct in determining that the appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [7] In his Basis of Claim Form, the appellant states that he was an XXXX XXXX XXXX XXXX XXXX. He alleges that he is being sought by his younger sister's former partner, a man named XXXX, and the criminals in his employ. XXXX allegedly blames him for having taken what belongs to him, his sister, and for having reported him to the authorities. He alleges that his sister was kidnapped and held against her will on November 15, 2017, along with her son by XXXX, and that this individual also drugged and prostituted her. The appellant alleges that he and his mother received anonymous calls containing death threats specifically aimed at him after his family filed a complaint with the police. He fears being killed or mistreated if he were to return to Mexico. REQUEST FOR AN ORAL HEARING [8] In his appeal memorandum, the appellant requests that an oral hearing be held before the RAD. Subsection 110(6) of the Immigration and Refugee Protection Act (IRPA) states that the RAD may hold a hearing if, in its opinion, there is new admissible evidence that meets the three conditions set out therein. I note that the appellant presented no new evidence and, as a result, the RAD must proceed without holding an oral hearing. STANDARD OF REVIEW [9] In his appeal memorandum, the appellant refers to reasonableness as being the applicable standard in this case, in light of Dunsmuir.1 [10] My role is to review all of the evidence and determine whether the RPD's decision is correct.2 The RAD may apply a deferential standard in certain circumstances. In light of Huruglica and Rozas del Solar, and having conducted my own analysis of the record, which included listening to the audio recording of the hearing, and considering all of the evidence, I am of the opinion that the correctness standard of review must be applied. ANALYSIS [11] To begin, I would like to point out that the appellant is not challenging the RPD's conclusion, with which I concur, that section 96 of the IRPA does not apply to his allegations. Did the appellant demonstrate that there was a reasonable apprehension of bias on the part of the Refugee Protection Division member? [12] The appellant submits that the RPD was biased against him and that he did not receive a fair hearing. He submits that the RPD abused its authority by disregarding all of the appellant's explanations about the omissions, contradictions and implausibilities raised. [13] Having listened carefully to the audio recording of the hearing, I am of the view that the appellant did not discharge his burden of proving that there was a reasonable apprehension of bias on the member's part. I cannot conclude that the member was biased against the appellant or that he impeded the holding of a fair hearing. On the contrary, I am satisfied that, throughout the hearing, the member was impeccably courteous towards the appellant. Indeed, on two occasions, the member invited the appellant to [translation] "relax" during his testimony, while acknowledging the stressful climate at the hearing. Subsequently, the member agreed to counsel's suggestion that the appellant be given a piece of paper and a pencil to help him recall certain dates.3 [14] Stating that a decision-maker is biased is a serious accusation that must be supported by credible evidence and sound reasoning.4 The test for a reasonable apprehension of bias was set out by Justice de Grandpré in Committee for Justice and Liberty: ...the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [T]hat test is "what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.5 [15] The case law indicates to us that an applicant alleging bias must meet a very high threshold. He or she must provide "cogent evidence" demonstrating that something an RPD member has done gives rise to a reasonable apprehension of bias (R v. RDS, [1997] 3 SCR 484, at paragraphs 116 and 117). As the Federal Court of Appeal states in Arthur, allegations of bias cannot be done lightly: ...An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard.6 [16] In my opinion, the appellant presented no cogent evidence demonstrating that the member's conduct gave rise to a reasonable apprehension of bias. I cannot conclude that a reasonable person would think that it was more likely than not that the member had prejudged the claim. [17] Overall, I am of the view that the member's attitude at the hearing does not give rise to a reasonable apprehension of bias. INTERNAL FLIGHT ALTERNATIVE [18] I would like to point out that on October 14, 2020, the RAD sent a letter to the appellant and his counsel to inform them that, in its analysis, it would be taking into consideration the update to the NDP on Mexico. The RAD gave the appellant until October 24, 2020, to provide additional submissions, if necessary. To date, the RAD has not received anything in that regard. [19] The IFA test has been developed in the case law since Rasaratnam and Thirunavukkarasu.7 In light of the case law, determining the existence of an IFA in a refugee protection claimant's country of origin involves a two-pronged analysis. The RAD must be satisfied, on a balance of probabilities, that the appellant will not be subjected to the risks set out in section 97 of the IRPA or that there is no serious possibility of the appellant's being persecuted in the part of the country where an IFA exists. Conditions in the part of the country where an IFA is envisioned must be such that it would not be unreasonable, in all the circumstances, including those particular to the appellant, for him to seek refuge there. Internal flight alternative - first prong [20] The RPD was of the opinion that the appellant failed to demonstrate that his sister's former partner would be motivated to track him down, let alone interested in doing so, in order to kill him if he were to return to Mexico. The RPD considered the evidence that states that it is easy to access anyone's personal information in Mexico8 and was of the view that XXXX was a petty criminal, and the group of criminals that he formed with his employees was not influential enough to track the appellant down everywhere in Mexico. It was the RPD's opinion that the activities of XXXX group were local and were aimed at protecting him from other similar groups. It was of the opinion that his activities did not extend to Campeche or Yucatan, which are among the states with the lowest crime rates in Mexico. It considered that the appellant failed to demonstrate, on a balance of probabilities, that Javier was capable of finding him in Campeche or Yucatan. [21] In his appeal memorandum, the appellant submits that the RPD did not take into account the fact that, as the victim of a criminal organization's violence, he is a vulnerable person. He submits that the RPD did not review all of the evidence. He submits that the RPD placed a heavy burden of proof on him to establish his fear in the proposed IFA locations. He submits that the RPD ignored the objective documentary evidence stating that the homicide rate is rising in 26 of Mexico's 32 states. He submits that the omissions highlighted by the RPD could not be described as material. He submits that the RPD's proposal regarding the IFAs demonstrates that it does not understand the current situation in Mexico. [22] Respectfully, I note that the RPD applied the correct standard of proof, namely, the balance of probabilities,9 in its analysis of the IFA prongs. [23] As for the appellant's submission that the RPD pointed out omissions from his written account, I note that the appellant's credibility was not called into question and that the RPD did not find that the contradictions and inconsistencies highlighted in its analysis were significant. I concur with the RPD's conclusion in that regard. [24] With regard to the appellant's submission that the RPD did not take his vulnerability into account, I note that no application was made to the RPD to identify him as a vulnerable person. The appellant presented no evidence in that regard. None of the evidence on the record demonstrates that the appellant was a victim of physical violence at the hands of his agents of harm, as posited in his submission. [25] As for the analysis of the first prong of the IFA, it is my opinion that this XXXX motivation and interest with regard to the appellant are determinative in this case. When asked what interest his agents of harm would have in tracking him down if he were to return to Mexico, when they apparently had not done so between the time his problems began in November 2017 and the time he left Mexico in XXXX 2018, the appellant responded that his agents of harm were interested in making his family suffer.10 When asked which of his family members still live in Mexico, the appellant stated that his mother, father and sisters still live there. I note that none of the appellant's family members has been bothered, let alone threatened, by this XXXX or his associates since he left Mexico. The appellant failed to demonstrate that his agents of harm are interested in using their resources to pursue him in the proposed IFA locations. [26] I consulted both versions of the NDP on Mexico, that is, the one disclosed to the appellant for his RPD hearing and the one updated on September 30, 2020. On October 14, 2020, the RAD disclosed to the appellant and his counsel the latest update of the NDP on Mexico, that of September 30, 2020, and gave him the opportunity to present new submissions, if applicable. To date, the RAD has received no additional submissions in this regard. [27] The initial version of the NDP found on the RPD record states that homicides rose in 2018.11 However, it states that Yucatan and Campeche lead the way when it comes to the reduction of the homicide rate.12 [28] The NDP on Mexico updated on September 30, 2020, demonstrates that in 2019, Yucatan was the most peaceful state in Mexico for the third consecutive year, followed by Tlaxcala, Chiapas, Campeche and Nayarit. However, three of the five most peaceful-Yucatan, Tlaxcala and Campeche-recorded a deterioration in their MPI scores in 2019, highlighting how widespread the breakdown in peace has been.13 This same source notes that Yucatan remains the most peaceful state, followed by Tlaxcala, Chiapas, Campeche and Nayarit.14 According to the same source, Yucatan and Campeche are still at the top when it comes to the most peaceful states.15 However, I note that Tlaxcala and Campeche recorded an increase in their homicide rate.16 [29] Although Campeche's homicide rate rose, the fact remains that it is one of the five most peaceful regions in Mexico. [30] In Roy,17 it is held that lack of evidence is an element that can reasonably support a finding that there is no ongoing interest in pursuing the applicant and hence that an IFA exists. [31] In light of the evidence on the record, I consider that the appellant did not discharge his burden of proving that his agents of harm have the desire to find him or are interested in doing so in the proposed IFA locations. [32] I took into account the culture of vengeance18 that may motivate agents of harm to track down their target, but in light of all the evidence, I am of the opinion that the appellant's agents of harm will not pursue their quest to find him in the proposed IFA locations because he is not a threat to them. As mentioned above, the appellant's family members who are still in Mexico have not been harassed or threatened since he left the country. [33] I recognize the danger that criminal groups in Mexico represent and their ability to track people down there, but in my opinion this does not prove that the appellant's agents of harm will do so in this case. At the hearing, the appellant pointed out the police's complicity with his agents of harm to implement their ability to track him down in the IFA locations. When asked why he would still be a subject of interest to his agents of harm when they had not searched for him when he reportedly changed residence after threats were made against him, the appellant responded, [translation] "because he will look for a way to take his revenge."19 I am of the opinion that the appellant's explanations are speculative in nature and do not allow me to conclude, on a balance of probabilities, that the agents of harm would continue their quest to find him in the proposed IFA locations. [34] In Leon, it is held "that there is a difference between a persecutor's ability to pursue an individual throughout a country and his desire to do so or interest in doing so. The fact that a persecutor is able to pursue an individual is not decisive evidence that he is motivated to do so. If the persecutor has no desire to find, pursue and/or persecute an individual, or interest in doing so, it is reasonable to conclude that there is no serious possibility of persecution."20 [35] Overall, it is my opinion that the appellant failed to establish that his agents of harm have any motivation to track him down in the proposed IFA locations. Given all of the evidence, I consider that the appellant would not be subjected to a risk to his life or to other risks pursuant to section 97 of the IRPA in the cities proposed as IFAs. I am of the view that the RPD did not err in its assessment of the first prong of the IFA and that its conclusion is correct in this regard. Internal flight alternative - second prong [36] The RPD considered the conditions in the proposed IFA locations, particularly the very low crime rate, and took into account the appellant's particular circumstances, including his young age and the fact that he had significant professional experience as an English teacher, which provided him with opportunities to find work. It concluded that there would likely be no barriers to his relocation, including finding a place to live. In the RPD's opinion, the appellant did not produce any actual and concrete evidence of the existence of conditions that would jeopardize his life and safety in Campeche and Yucatan. The RPD concluded, on a balance of probabilities, that it would be neither unreasonable nor unduly harsh for the appellant to move to the proposed IFA locations. [37] In his appeal memorandum, the appellant submits that the RPD did not consider his personal and particular circumstances when assessing the reasonableness of the IFAs. [38] Respectfully, I do not concur with the appellant's submission, because the RPD clearly states in its decision that it considered his particular circumstances. In fact, when asked about the possibility of working as a XXXX in the IFAs, the appellant responded as follows: [translation] "Yes, because that is what I was doing."21 It is my opinion that the appellant did not discharge his burden of proving that it would be impossible for him to find employment and housing in the proposed IFA locations. [39] I note that the appellant simply cited jurisprudential principles without challenging in any concrete way the merits of the RPD's conclusion regarding the second prong of the IFA. I, for one, see no errors in that conclusion. [40] Overall, I am of the opinion that the RPD's decision regarding the existence of an IFA in the proposed locations is correct. CONCLUSION [41] I dismiss the appeal and confirm the determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Toni Jedid Me Toni Jedid November 9, 2020 Date IRB translation Original language: French 1 Dunsmuir v. New Brunswick, 2008 SCC 9. 2 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Audio recording of the hearing of August 22, 2019, 00.30.08. 4 Bulut v. Canada (Minister of Citizenship and Immigration), 2005 FC 1627. 5 Committee for Justice and Liberty v. National Energy Board, [1978] 1 SCR 369. 6 Arthur v. Canada (Canada (Attorney General)), 2001 FCA 223. 7 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (CA), at page 710 and Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA). 8 SPR-1, Refugee Protection Division record, general list of documents, Doc. 3 - National Documentation Package (NDP), Mexico, March 29, 2019, Tab 14.2: Cases in which personal data from a bank account, cellular telephone or credit card statement have been used by the police or the population in general to locate a third party. Immigration and Refugee Board of Canada. July 5, 2010. MEX103394.FE, at page 2. 9 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (CA). 10 Supra, endnote 3, 01.24.28. 11 Supra, endnote 8, Tab 1.5: ?Results and Findings. Mexico Peace Index 2018. ?Institute for Economics and Peace. April 20, 2018, at page 11. 12 Ibid., at page 13. 13 NDP on Mexico, September 30, 2020, Tab 1.5: ?Mexico Peace Index 2020. Institute for Economics and Peace. May 2020, at page 2. 14 Ibid., at page 4. 15 Ibid., at pages 7 and 12. 16 Ibid., at page 16. 17 Roy v. Canada (Citizenship and Immigration), 2012 FC 434 at para. 26; Deb v. Canada (Citizenship and Immigration), 2015 FC 1069 at paras. 17-18. 18 NDP, Mexico, September 30, 2020, Tab 7.15: Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana and the Beltrán Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico. Immigration and Refugee Board of Canada. August 15, 2019. MEX106302.E, at page 11. 19 Supra, endnote 3, 01.28.13. 20 Leon v. Canada (Citizenship and Immigration) - 2020 FC 428 - 2020-03-26, para. 13. 21 Supra, endnote 3, 01.32.23. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-23038 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