TC1-11841

RAD File / Dossier de la SAR : TC1-11841 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX Personnes en cause Date of decision March 31, 2022 Date de la décision Panel D. Thorne Tribunal Counsel for the persons who are the subject of the appeal Adela Crossley Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellant XXXX XXXX XXXX (the "Appellant") is a citizen of Mexico who has appealed a decision of the Refugee Protection Division (RPD) rejecting his claim for refugee protection. For the reasons set out below, the appeal is dismissed. [2] The Appellant alleges that he fears persecution in Mexico, from the federal and state police as well as the Juarez and Sinaloa cartels. He states that as a XXXX and former XXXX XXXX, he was appointed as a XXXX XXXX XXXX in his home city of Cuauhtemoc, in the state of Chihuahua, on XXXX XXXX, 2016. He notes that in XXXX 2017 a period of armed violence erupted between the two cartels in a turf war over the state upon the entry of the Sinaloa cartel, and that several police officers were killed or injured in the violence. As the municipal police were unable to control the situation, the state governor ordered the state police to take over policing, and a federal officer, JCJ,1 who had been seconded to the state police was correspondingly put in charge of all police operations. Though the municipal police chiefs were not dismissed, they were stripped of operational authority by JCJ. [3] The Appellant states that at the beginning of XXXX, 2017 he was invited to a meeting with JCJ who told him that he would be carrying out a "cleansing campaign" to get the situation under control. The Appellant understood this to mean that extra-judicial methods of policing would be utilized. He states the CJC then told him that he had the choice of working with CJC and accepting his methods or to "get out". The Appellant states that he was also warned to watch what he said or did, as CJC could easily make people disappear. On XXXX XXXX, 2017, the Appellant, along with XXXX other XXXX XXXX XXXX resigned their posts rather than work with CJC. The Appellant states that on XXXX XXXX, 2017 the state attorney's office later began a criminal investigation of CJC, and that on XXXX XXXX, 2017 CJC was detained by the prosecutor's office on charges of being complicit in the forced disappearance of a person. [4] The Appellant states that on XXXX XXXX, 2017, while driving, he was cut off by a vehicle driven by two armed, masked men. He states that the two men brandished weapons, asked him what he was waiting for and told him to "get the hell out", before they drove off. He reported this to the police the following day. He notes that later in XXXX he was able to secure an electronic Travel Authorization ("eTA") for Canada. However, he did not use it, and instead went to Mexico City on XXXX XXXX, 2017, where he stayed with his sister and worked as an XXXX. He states that in XXXX 2018, he returned to his home city of Cuauhtemoc. However, he did not return to his old address there at the time, but instead stayed with his in-laws and continued working as a XXXX. He states that in XXXX 2018, he took on a temporary job XXXX a XXXX specialization course in the city of XXXX XXXX, in the state of Campeche, for a few weeks. Upon his return to his home city at the beginning of XXXX, he left his in-laws' home and resumed living at his original address. He asserts that he later learned through social media that CJC was now in the state of Coahuila, and had seemingly escaped conviction as he, once again, appeared to be a XXXX XXXX. [5] He states that in XXXX 2018 his neighbours informed him that different vehicles had come by his house and that "people who did not look to have good intentions were asking about" him.2 He states that he then went to a ranch owned by his relatives that was outside of the city for a few days and also obtained a second eTA for Canada. On XXXX XXXX, 2019 he travelled to Canada, where he made a claim for asylum at the airport. [6] The RPD ultimately rejected the Appellant's claim, holding that as his allegations lacked a connection to any of the Convention refugee grounds, as they only reflect a fear of criminality, he was not a Convention refugee. It further held that his allegations lacked credibility, as they suffered from inconsistencies and omissions that were not adequately explained, and that he had provided virtually no corroborative evidence. As a result, it held that he had also not established that he was a person in need of protection pursuant to section 97 of the Immigration and Refugee Protection Act, (IRPA).3 It specifically found that: a. The Appellant was not a consistent and reliable witness, as he provided vague, inconsistent and imprecise testimony that evolved suspiciously; b. The Appellant's claim that his neighbours had warned him about individuals searching for him at his home was a second-hand account backed by no corroborative evidence whatsoever; c. The Appellant's conduct and delay in leaving Mexico indicated a lack of subjective fear and undermined the credibility of his claims; and d. On a balance of probability, the Appellant would not be subject to s. 97 risk, as there was no evidence of an ongoing existential threat to the claimant. [7] The Appellant has appealed the RPD's decision and is now asking that the Refugee Appeal Division (RAD) recognize him as a Convention refugee or a person in need of protection under s. 97 of the IRPA.4 He also seeks to introduce, as new evidence, a letter written by a member of his counsel's staff and a new Affidavit from the Appellant, and requests an oral hearing, if necessary. The Appellant essentially argues that the RPD erred in its assessment of his credibility, and in particular that: a. The RPD erred in holding that he was not a trustworthy witness, as that finding was the result of misperceptions and microscopic analysis; b. It was unreasonable for the RPD to have expected the Appellant to have amended his materials to make mention of an additional allegation of a search at his sister's property, as despite being a XXXX, he was not familiar with the Canadian system; c. The RPD inappropriately rejected as hearsay his claim that his neighbours told him of people who had come asking about him; d. The Appellant's delay in leaving Mexico and open practice of XXXX did not reflect a lack of subjective fear, but rather a desire to remain in his country; and e. The RPD's findings displayed a rudimentary understanding of the country context in relation to the cartels, in its assessment of forward-looking risk. DETERMINATION [8] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellant is neither a Convention Refugee nor a person in need of protection, pursuant to paragraph 111(1)(a) of the IRPA. ROLE OF THE RAD [9] The Refugee Appeal Division reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.5 The exception to this rule is that the RAD may apply a deferential standard in certain circumstances.6 I have conducted my own independent assessment of all of the evidence in this case, including the transcripts and oral recording of the RPD hearing. I find the appropriate standard in this case to be one of correctness. ADMISSIBILITY OF EVIDENCE SUBMITTED ON APPEAL [10] In support of this appeal, the Appellant proposes the admission of an affidavit that he swore to on XXXX XXXX, 2021,7 along with a XXXX XXXX, 2021 letter written by a Spanish speaking member of his counsel's staff.8 Both of these documents speak to an issue in the translation of the XXXX XXXX, 2017 police report, which the Appellant claims led the RPD to incorrectly conclude that his testimony contradicted the account in the report. [11] Subsection 110(4) of the IRPA sets out that an appellant may only present evidence that arose after the rejection of their claim, or that was not reasonably available, or that they could not reasonably have been expected in the circumstances to have presented at the time of the rejection. Where evidence meets the requirements of ss. 110(4), the RAD will then go on to consider the additional factors affirmed by the Federal Court of Appeal in Singh,9 including the credibility, relevance and newness of the evidence. [12] In this case, I admit both of the documents submitted by the Appellant as new evidence. In terms of the requirements of ss. 110(4), I find that both documents were written after the rejection of the Appellant's claim, and that the Appellant could not reasonably have been expected to have presented the evidence that these documents contain about the translation of the police report before the issuance of the RPD decision, given that it was not clear until that decision was issued that the RPD's concern reflected the particular translation of a directional term contained in the report. In terms of the Singh factors, I find that this evidence is credible as to source and circumstance; it proves a fact relevant to the claim in that it clarifies the direction the Appellant drove following the confrontation in his car; and that this evidence is new, in that it provides a basis to contradict the finding of fact made by the RPD as to the direction the Appellant departed in at that time. Finally, though the aforementioned documents have been accepted as new documentary evidence by the RAD, I note that this evidence does not concern or raise a serious issue with respect to the Appellant's credibility, and nor, as will be discussed below, is it central to the decision with respect to the refugee protection claim. As a result, pursuant to subsection 110(6) of the IRPA, an oral hearing cannot be held. ANALYSIS Summary [13] The RPD found that due to a series of credibility issues, including a range of inconsistencies, contradictions and evolutions in his evidence that were not adequately explained, the presumption of truthfulness had been rebutted in this matter. As a result, it further determined that the Appellant was not a credible witness and that he had not established in evidence that he would be at risk in Mexico. As noted below, while I disagree that all of these supposed factors should be held to impugn the credibility of the Appellant, on the whole, a review of the evidence indicates that the RPD did not err in its conclusions with respect to credibility, and I agree with the RPD's findings. This includes its finding that the Appellant did not establish, on a balance of probabilities, that he is being sought by those who he claims and thus that there is a serious possibility of persecution, or that he faces a s. 97 IRPA risk, if he were to return to Mexico. THE RPD'S CREDIBILITY ASSESSMENT [14] As previously noted, the RPD made a number of findings which established that the Appellant was not credible with regard to his allegations, and credibility was, accordingly, the determinative issue in this appeal. The RPD did not err in finding that the Appellant's inconsistent and evolving testimony undermined his credibility The interaction with the men in the vehicle [15] The Appellant argues upon appeal that the RPD should not have held that a supposed inconsistency between his Basis of Claim (BOC) narrative and his testimony in relation to the car which pulled him over - relating to which direction he went after the confrontation - damaged his credibility. He argues that this finding was microscopic, and that, in any event, the new evidence that he has submitted as to the translation of the police report indicates that the RPD's perception of an inconsistency was the result of a mistranslation in relation to the direction taken. [16] Upon my own review of the record, I do not find it necessary to consider whether the police report was inaccurately translated, as I agree with the Appellant that the question of the direction that he drove after that incident is a microscopic one, on which nothing of substance in his account turns. I also note that unlike the RPD, I do not view his testimony that after the incident "I continued on my way"10 to be antithetical to the police report's account,11 regardless of the minutiae of its translation. Accordingly, I do not draw a negative credibility inference against the Appellant, in relation to his account of the interaction with the automobile that pulled him over. The Appellant's time in Mexico City [17] I cannot say the same, however, with respect to the Appellant's testimony in relation to his time and employment in Mexico City. On this front, the RPD noted that the Appellant had given divergent evidence, declaring alternately that he had 1) been a private XXXX during this time;12 2) that he had been a XXXX for a XXXX during that entire time;13 and 3) that he had worked as a XXXX XXXX for a small company at the time in question.14 When questioned about these discrepancies in testimony, the Appellant stated that being a XXXX and XXXX were essentially the same thing, and that the company he had worked at was small and new. When asked what the name of the company was, the Appellant stated that he could not remember it. Upon appeal, the Appellant now argues that the descriptions of where he worked were not inconsistent, but rather reflected differences in terminology with respect to describing XXXX work in Mexico's XXXX XXXX system, as opposed to under Canada's XXXX XXXX regime. He also states that his inability to recall the company he had worked at for a few months meant nothing except that "this was not information that was important to him to store and recall" and that "there is no universal standard on what an individual ought to remember. Memory is a very subjective thing...".15 Finally, he argues that it is unreasonable for the RPD to expect an "encyclopedic" account of one's evidence and that he had only worked at that company for a very short period of time.16 [18] Upon my review of the record, I do not find that the RPD erred in finding that this evidence of the Appellant was suspect. Even putting aside the contention that the three descriptors for XXXX work used by the Appellant should be believed to be interchangeable under Mexico's XXXX XXXX regime, I do not find the Appellant's explanation for being unable to name the company where he worked for the approximately six months that he resided in Mexico City to be persuasive. Undoubtedly memory can be subjective, but expecting him to be able to merely remember the name of his only workplace in the half year after he had first left his home city is not demanding encyclopedic or unreasonable recall - particularly since that was a fairly recent event, dating back only to 2018. I also note that, in my view, six months of employment is not a very short period of time, and nor can it be said that the Appellant worked for such a great number of employers around that time that he might understandably forget one - it was, rather, his only employer at the time. In short, it is not credible that the Appellant simply cannot remember such basic information, for the supposed reason that it was not important to him. I also note that this is not incidental information, as it calls into question the Appellant's claims as to his activities, and even presence, in Mexico City. As such, I find that this does undermine, to a degree, the credibility of the Appellant and his allegations with respect to his alleged time in Mexico City. [19] I also note that further undermining his credibility in this regard was the inconsistent testimony provided by the Appellant in relation to when he left Cuauhtemoc to go to Mexico City. Initially, when asked if he had stayed in Cuauhtemoc after the vehicle encounter, the Appellant stated "Yes, I was there but only until the end of XXXX".17 He would then go on to repeat this and even clarify that by this, he was referring to XXXX 2017.18 However, when the RPD noted that his BOC narrative stated that he had gone to Mexico City on XXXX XXXX, 2017, the Appellant then stated that perhaps his dates were not precise, but that he had "left around the end of XXXX or XXXX".19 When further pressed by the RPD, he then stated that he had filed the police report during early XXXX and had then gone to Mexico City around mid-XXXX.20 When then asked to explain this series of discrepancies in his testimony, the Appellant then stated that he had become confused because the dates were "pretty close and I filed the report n [sic] the beginning of XXXX ... and so then I must have left mid XXXX and I was confused whether I had filed a report Mid XXXX and then I left to Mexico City in XXXX, that is what happened".21 [20] In my view, this explanation is problematic, given the context of the events outlined by the Appellant. In his telling, he was threatened by two men on the road, after which he reported this to the police and then was forced to immediately uproot his life and flee from his home city. While it is understandable that it might well have taken him a couple of weeks to arrange his affairs before he could leave, one would expect that he would have a good sense of when all of this occurred and particularly when he fled to Mexico City. That he would mistakenly confuse this and think that he had instead left some six weeks later, and particularly during a season as memorable as the end of the year or around Christmas, as he explained, is not reasonable. I find that this, too, undermines his credibility and that of his allegations with respect to his time in Mexico City and when, or if, he left Cuauhtemoc. The Appellant's evolving testimony with respect to being sought at his sister's home [21] In its analysis, the RPD found that the evidence and testimony of the Appellant evolved suspiciously, and it essentially found that his credibility was undermined as a result. [22] In particular, when questioned in testimony about why he believed that Mexico City would not be a safe location for him to live, the Appellant then suddenly stated, for the first time, that there was something that he had not yet revealed to the RPD: that people had come looking for him at his sister's home in Mexico City on two occasions.22 When the RPD questioned why he had not mentioned such a pertinent event previously or anywhere in his materials, the Appellant stated that it was because he had found this out in mid-2019, which was after he had submitted his materials and particularly his BOC narrative on XXXX XXXX, 2019. When the RPD questioned why he had not amended his narrative since that time to include these key events, the Appellant replied that he had not known he could do this. The RPD rejected this explanation as unreasonable, noting the sophistication and education level of the Appellant, as well as the fact that he was represented in the matter, and further rejected these new allegations as untrue. [23] Upon appeal, the Appellant now argues that the RPD "imposed an unreasonable requirement on the Appellant [by expecting him] to amend his narrative as time passed",23 pointing out the RPD Rules do not mandate that an Appellant must amend their BOC as new evidence emerges. He also states that while the Appellant was admittedly a well-educated XXXX, immigration was not his area of expertise, Canada is a different jurisdiction, and he was represented by an immigration consultant who he rarely spoke with. Finally, the Appellant argues that given the presumption of truth, the RPD cannot arbitrarily doubt sworn statements made by the Appellant. [24] The RPD did not err in its findings with respect to this issue, and I find that the evidence of the Appellant did evolve suspiciously with respect to the alleged searches at his sister's home in Mexico City. I note that not only was this information not included in his BOC and other materials, but these allegations did not arise until late in the hearing, when the Appellant was being pressed as to why Mexico City, where he had previously stayed without incident for six months, was not a safe location and why he had chosen to leave there to return to his home city. Only then were these new allegations asserted.24 I also note that while the Appellant now states that he had not added this information as he did not know that he could amend his materials, at the outset of the hearing the Appellant was specifically asked if his BOC was complete and he specifically affirmed this.25 He did not indicate that new information about searches for him at his sister's home had come to light, or attempt to add it at that time. In fact, there was even an additional two months between that initial hearing date, on April 15, 2021 and a second hearing session for the Appellant on June 14, 2021,26 and nor did the Appellant seek to add this information during this time either. Given that he alleges that he discovered this new information in mid-2019, and not only did he not mention it, but had instead testified that his materials were fully complete at the time of his hearing, the Appellant's claim that he had not known he could amend his materials is not persuasive. [25] Nor is the Appellant's argument that it was unreasonable to expect him to have amended his documents persuasive, either. The Appellant is a highly educated professional and a XXXX. Even though Canada is not the jurisdiction of his XXXX expertise, it is not reasonable that he would not have realized that it was necessary to include all of the relevant information in his claim, or that when such pertinent, new information came to light that it should be brought to the attention of the Board. It is also unreasonable that he would not have, at least, sought information or advice as to how to do this from his representative. Indeed, it is clear that given the Appellant's XXXX background, he would have been better situated than most claimants to understand these obligations, and to know not to swear to the contrary of this at the outset of the hearing. I note that I agree that there is indeed a presumption of truth as to the testimony of claimants before the Board, however as is noted in Maldonado,27 that presumption may be rebutted where there are reasons to doubt the truthfulness of that testimony. For the reasons noted, that is exactly the case here. I find that the testimony of the Appellant evolved suspiciously with respect to the alleged searches at his sister's home, and I find that, on a balance of probabilities, these allegations are untrue. Accordingly, I draw a negative credibility inference with respect to these allegations, and find that the credibility of the Appellant has been seriously undermined, as a result. I also note that these findings are significant, as they go to the heart of the Appellant's claim, and call into question his assertions that he is being sought and pursued. That these claims have been significantly undermined throws into serious doubt the foundation of the Appellant's entire claim. The Appellant's neighbours informing him that people were searching for him [26] A further finding of the RPD concerned his claims that he ultimately fled from Mexico to Canada when his neighbours in Cuauhtemoc warned him that suspicious vehicles had been spotted near his home and that unsavory individuals had been asking about him. In relation to this, the RPD noted that, when questioned, the Appellant had no corroborating evidence, such as letters or affidavits from the neighbours, in support of this allegation. It stated that, as a result, the Appellant's claims of having been told this information was hearsay, and that it placed no weight on this evidence. [27] Upon appeal, the Appellant makes a series of arguments in response. He primarily argues that the RPD erred in law by rejecting that evidence simply because it was hearsay, and to that end he notes that pursuant to s. 170 of the IRPA it is clear that the Board is not bound by any legal and technical rules of evidence.28 He further states that the RPD did not provide any other explanation for why it was rejecting his evidence with respect to the alleged warning of his neighbours.29 He also essentially argued that there would have been no point in his providing letters or affidavits from the neighbours setting out their accounts, as there would have been nothing in those letters that the RPD could test that would go beyond what it could already test with respect to the Appellant's own testimony as to these claims.30 Additionally, he notes that evidence should not be rejected solely because it is self interested or from the family or friends of an Appellant,31 and finally, he again argues that under Maldonado, there is a presumption of truth as to the sworn testimony of an Appellant, unless there is a valid reason to doubt their truthfulness.32 [28] I agree that the RPD erred in rejecting the Appellant's claims of having been warned by his neighbours solely because of the stated reason that those claims were hearsay. It is clear the Board may admit such evidence, as it is not strictly bound by the technical rules of evidence, and may consider such evidence holistically. As a result, I do not reject this evidence because it is hearsay, nor draw a negative credibility inference against the Appellant for that reason. [29] However, upon my review of the evidence, I find that the Appellant has indeed provided no corroboration, whatsoever, of his claim that his neighbours warned him about suspicious people inquiring about him and that vehicles had been frequenting the neighbourhood. Nor, it emerged, had he made any attempt to secure such documentation. I note that when questioned about whether he had any supporting letters or evidence from the neighbours with respect to this, the Appellant flatly responded no.33 When asked why not, he stated "Because I do not, I do not have a letter from them, it is just what they told me".34 The RPD then asked whether the Appellant had asked these neighbours to provide such letters, and was again flatly told no.35 When the RPD finally asked why he had not done so, the Appellant responded only "Because I did not know that I needed to show letters".36 I find it unreasonable that the Appellant did not at least seek or make an attempt to secure such corroborating evidence, and I do not find the Appellant's explanation for failing to do so persuasive. I again note that he is a sophisticated and well-educated party, and a XXXX by trade. I find that as such, he would be well aware of the importance of providing corroborating evidence of one's allegations, regardless of whether Canada was not his jurisdiction of XXXX expertise. Indeed, I note he has accordingly provided a great deal of corroborating evidence with respect to the other facets of his claim, if not this one. I also note that he is, and has been, represented throughout his proceedings before the Board, and it is not reasonable that he would not have at least made inquiries as to whether it would have been helpful to have provided letters from his neighbours, if he had been in doubt of this. [30] Putting aside that I have already found that the Appellant's presumption of truthfulness in this matter has been rebutted, I also note that while there is generally a presumption of truthfulness before the Board, this does not excuse a claimant from making a genuine effort to provide corroborative evidence to establish the trustworthiness of their sworn statements37 - and that this is particularly so where other credibility concerns exist in relation to an Appellant's testimony, as is the case here. Accordingly, while I am untroubled that the claims related to his neighbours are hearsay, I find that the Appellant's failure to even seek corroborating evidence in relation to these allegations, and his failure to provide a reasonable explanation as to this seriously undermines the credibility of this allegation, as well as that of the Appellant generally. I also, again, note that these findings are significant, as they, too, go to the heart of the Appellant's claim, since he alleges that it was this specific incident which ultimately led him to decide to finally flee Mexico and come to Canada. That this claim has been significantly undermined also throws into serious doubt the foundation of the Appellant's entire claim. The RPD did not err in finding that the Appellant's demonstrated lack of subjective fear undermined his credibility [31] I note that the RPD essentially found that the behaviour of the Appellant demonstrated a lack of subjective fear. In particular, it noted that the Appellant had obtained an electronic Travel Authorization (eTA) in XXXX 2017, after the alleged threat by the men in the vehicle, but that the Appellant never utilized this to journey to Canada. Instead, it was thirteen months later, in XXXX 2018 that he obtained a second eTA for Canada, which he used to travel on XXXX XXXX, 2019. The RPD also noted that after he was threatened by the men in the vehicle in XXXX 2017 he moved to Mexico City, where he stayed with his sister, but that he returned to his home city of Cuauhtemoc after six months, in XXXX 2018, and that he continued to openly practice XXXX in both locations. It further noted that he again left Cuauhtemoc in XXXX 2018, this time for a six-week temporary job XXXX a XXXX training course in the city of XXXX XXXX, after which he returned to Cuauhtemoc at the end of XXXX, 2018 and resumed his legal practice. The RPD held that his twice returning to Cuauhtemoc, the city where he had been threatened, and his ongoing open practice of XXXX demonstrated a lack of subjective fear on the part of the Appellant. [32] The Appellant argues that his actions did reflect a subjective fear, as he had moved to Mexico City after being threatened, and that his failure to immediately use the initial eTA to flee to Canada was because he viewed leaving his country as a last resort, and he had only obtained the eTA as an insurance policy, in case he needed to take this step. He states that as a XXXX XXXX and XXXX he had an intimate understanding of the risks he faced, and that his delay in leaving Mexico reflected not a lack of fear, but rather an optimistic desire to remain in his country, if possible.38 The Appellant also argues that his decisions to return to Cuauhtemoc repeatedly and to practice XXXX openly did not indicate a lack of subjective fear, but that he had moved from city to city with trepidation,39 that he did not immediately take up residence at his former home when he returned, as he instead lived at his mother-in-law's home, he had incrementally resumed his old life,40 and that he had hoped that practicing XXXX would not lead to his being targeted.41 He argues that he lived as discretely as possible while maintaining his career.42 [33] Upon review of the record, I do not find that the Appellant's failure to immediately leave Mexico, upon having obtained his initial eTA, can be taken to demonstrate a lack of subjective fear. I accept as reasonable the Appellant's argument that, while he was fearful, he viewed fleeing his country as a last resort, and instead first sought to relocate within the country. As a result, I do not draw a negative credibility inference in this regard. [34] However, I do find that that Appellant's return to Cuauhtemoc and his apparently open practice of XXXX there do indeed indicate a lack of subjective fear. While the Appellant now argues that he had moved to Mexico City to live with his sister for "nearly one year",43 this is not accurate. Instead, the Appellant returned to Cuauhtemoc after only six months (having left for Mexico city in mid-XXXX 2017 and returned in XXXX, 2018). In addition, contrary to his appeal arguments that he had sought to return because he was incrementally attempting to resume his old life, in testimony the Appellant asserted something quite different. When questioned about why he left Mexico City to return to Cuauhtemoc, he instead stated that he had returned as he believed people were still looking for him, and that he had not wanted to put his sister and her family in danger by remaining with them.44 I note that when further asked about his return to Cuauhtemoc, he would repeat this rationale again later in his testimony.45 In the telling of the Appellant, he had fled to Mexico City in fear of his life after he had been specifically warned to leave his hometown by two threatening men in the vehicle incident. Given this, I do not find his explanation for why he would return after a mere six months persuasive. If the reason he felt that he had to leave his sister's home was that he believed people were pursuing him and he did not want to put her family in danger, in my view it is not reasonable that he would choose to return to the very city where the most pronounced danger to him existed, and that he would do so after only six months. It is also not reasonable that he would then also openly practice XXXX in that city, and that, other than when he travelled to take on a six-week training role in another city, he had clearly intended to remain in Cuauhtemoc after he returned to his home city, rather than live elsewhere in Mexico. It is further not reasonable, that after returning to that city from his teaching stint, he would then also move back to his original address, where he could most easily be found. Given these circumstances, I find that the behaviour of the Appellant in returning to Cuauhtemoc so quickly indicated a lack of subjective fear and that this does further undermine the credibility of his allegations. The nature of the alleged danger faced by the Appellant [35] Finally, I note that upon appeal the Appellant takes issue with the RPD's analysis in respect of the danger that he claims to face. In particular, the RPD held that there was no evidence of any ongoing existential threat to the Appellant,46 noting among other things that the Appellant had allegedly been threatened twice - once obliquely by the federal officer JCJ in XXXX 2017, and then in XXXX 2017 during the vehicle incident - but that he had returned to the city after six months and had faced no further threats or consequences.47 The RPD also reasoned that the Appellant had done what JCJ had wanted in resigning and not speaking to anyone about what he had been told, so it was not apparent why he should fear any reprisal from JCJ.48 It also noted that there was no evidence that any harm had befallen the eight police chiefs who had resigned, as opposed to the three who had remained, and stated that this suggested that the only parties in danger were those police chiefs who had not resigned.49 The RPD ultimately concluded that it had not been presented with reliable evidence suggesting that the Appellant faced an on-going existential threat to his safety in Mexico. [36] To this, the Appellant argues that the findings of the RPD were speculative and reflect a lack of understanding about how cartels operate in Mexico. It argued that the RPD failed to consider the objective evidence indicating that police are targeted by cartels for violence, and that police corruption is common, and he cites a number of articles with respect to this, stating that such information "illustrates the heightened risk the Appellant faces in light of his background as a XXXX XXXX and corroborates his account of the persecution he faces, given that he refused to engage with [CJC's] corrupt activities".50 [37] Upon review of the evidence, I note that beyond calling the RPD's reasoning speculative, and vaguely stating that it did not speak to the evidence presented,51 the Appellant essentially does not address the RPD's question as to why CJC would have any interest in him, or seek to target him, given that he had done what he had been warned to do. I also note that the Appellant's evidence further indicated that CJC had been arrested and charged in connection with investigations into unlawful disappearances, and that he had later discovered through social media postings that CJC was now living in a different Mexican state, Coahuila.52 From this, it would seem that CJC was not only no longer present or in a position of authority in the Appellant's city of Cuauhtemoc, but that he was living in another state entirely. Given this, it would seem that this party would have little ability, as well as the aforementioned lack of motivation, to target the Appellant, and more importantly, I note that the Appellant has presented no evidence to the contrary on either front. [38] I agree with the Appellant that there is plentiful objective evidence indicating that there is significant corruption in the Mexican police forces, and undoubtedly the cartels do wield influence over both the police and government in various areas, as has been noted in the Immigration Refugee Board of Canada's National Documentation Package for Mexico. However, I note that beyond his extremely vague allusion that the cartels are targeting him, the Appellant has not explained why this is or how this is consistent with the core of his claim that CJC, and thus the police force, is behind his persecution - much less provided any evidence to this effect. Indeed, the Appellant has not even indicated why the cartels he claims to fear would have an interest in him. While cartels have certainly been known to target police officers, his evidence was that he resigned being the XXXX XXXX, as he refused to take part in CJC's unlawful cleansing campaign against the cartels. He also never presented any evidence as to having had any interactions with the cartels, at all. Given this, it is in no way clear why he would have been of any interest to the cartels; indeed, from the evidence of the Appellant, it would seem to be quite the opposite, as he refused to take part in the (unlawful) operation against them. I also note that in neither his Appellant's memorandum, nor in his testimony has the Appellant ever spoken to this or of a link between CJC and the cartels,53 and again most importantly, he has provided no evidence to this effect. [39] For these reasons, I find that the Appellant has not established in evidence that he is being pursued by either CJC or the cartels that he has named. CONCLUSION [40] For the foregoing reasons, and based upon my own analysis of the record, I agree with the finding of the RPD that the Appellant is not a credible witness. I further find that, on a balance of probabilities, the Appellant was not credible with regard to his allegations that he has been targeted by the police forces or the Juarez and Sinaloa cartels and that this ultimately led to his flight to and eventual claim of refugee status in Canada. I therefore concur with the RPD decision that the Appellant's claim is not established. As such, I find that, on a balance of probabilities, that he is not subject to a risk to his life, or of cruel and unusual treatment or punishment or torture in Mexico. I also note that as the Appellant's allegations concern only a fear of criminality, and are not related to any of the IRPA s. 96 grounds of protection for a Convention refugee, he is further not a Convention refugee. [41] For these reasons, the appeal is dismissed. In accordance with paragraph 111(1)(a) of the IRPA, I confirm the decision of the RPD that the Appellant is not a Convention refugee or a person in need of protection within the meaning of s. 96 and s. 97 of the IRPA. (signed) D. Thorne D. Thorne March 31, 2022 Date 1 Personal identifiers have been removed, except where necessary to explain the reasoning of this decision. 2 Exhibit RPD-1, RPD Record, Exhibit 2, BOC Narrative, at p. 25, para. 31. 3 Immigration and Refugee Protection Act, (IRPA) S.C. 2001, c. 27, as amended. 4 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 77, para. 93. 5 M.C.I. v. Huruglica (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, [2016] 4 FCR 157, at para. 103. 6 Rozas del Solar v. M.C.I. (F.C., no. IMM-2645-17), November 14, 2018 FC 1145, [2019] 2 FCR 597. 7 Exhibit P-2, Appellant's Record, Affidavit of the Appellant, at p. 44. 8 Ibid., at p. 42 - 43. 9 M.C.I. v. Singh, Parminder (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 10 Transcript of RPD Hearing, June 14, 2021 at p. 12. 11 Exhibit RPD-1, RPD Record, Exhibit 4, State Prosecutor's Office report, at p. 89. 12 Exhibit RPD-1, RPD Record, Exhibit 2, BOC Narrative, at p. 24, para. 27. 13 Exhibit RPD-1, RPD Record, Exhibit 2, CBSA Point of Entry Notes, at p. 48. 14 Transcript of RPD Hearing, June 14, 2021 at p. 14. 15 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 57, para. 33. 16 Ibid., at pp. 57-58, paras. 34 and 37. 17 Transcript of RPD Hearing, June 14, 2021 at p. 13. 18 Ibid. 19 Ibid. 20 Ibid., at p. 14. 21 Ibid. 22 Ibid., at p. 25. 23 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 59, para. 39. 24 Transcript of RPD Hearing, June 14, 2021 at p. 25. 25 Audio Recording of the RPD Hearing, April 15, 2021, at 0:14:10. 26 I note that originally, the Appellant's claim was joined with that of his brother, and that both of them individually swore to the comprehensiveness of their respective BOCs on the initial hearing date of April 15, 2019. The claims were later disjoined, and the Appellant later testified in full on the June 14, 2021 hearing date. It is this transcript which is cited in this decision, though the oral recording of both hearing dates has also been provided. 27 Maldonado v. Canada [1980] 2 F.C. 302 at para 5. 28 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 69 - 72, paras. 66 - 76. 29 Ibid., at p. 70, para. 69. 30 Ibid., at p. 70, para. 70. 31 Ibid., at p. 72, paras. 77 - 79. 32 Ibid. at pp. 70- 71, para. 71. 33 Transcript of RPD Hearing, June 14, 2021 at p. 21. 34 Ibid. 35 Ibid. 36 Ibid. 37 Kallab v. Canada (Citizenship and Immigration), 2019 FC 706. 38 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at pp. 64- 68, paras. 52 - 61. 39 Ibid., at p. 68, para. 62. 40 Ibid., at p. 66. para. 56. 41 Ibid., at p. 69, para. 63. 42 Ibid., at p. 69, para. 64. 43 Ibid., at p. 68, para. 62. 44 Transcript of RPD Hearing, June 14, 2021 at p. 22. 45 Ibid., at p. 25. 46 Exhibit RPD-1, RPD Record, RPD Decision at p. 9, paras. 28 and 31. 47 Ibid., at p. 9, para. 27. 48 Ibid., at p. 8, para. 24. 49 Ibid., at p. 9, para. 30. 50 Exhibit P-2, Appellant's Record, Appellant's Memorandum, at p. 74, para. 82. 51 Ibid., at p. 62, para. 48 52 Exhibit RPD-1, RPD Record, Exhibit 2, BOC Narrative, at p. 24, para. 28. 53 Though I note that the Appellant did testify that he intended to 'clean out' the Sinaloa cartel that was moving into the area, as this cartel wanted to establish itself in the city through violence, and this needed to be stopped: Transcript of RPD Hearing, June 14, 2021 at p. 8. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-11841 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français