MB8-15648

RAD File No. / No de dossier de la SAR : MB8-15648 MB8-15649 / MB8-15650 / MB8-15651 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision December 16, 2019 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the persons who are the subject of the appeal Me Alfredo Garcia Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX and her spouse XXXX XXXX XXXX XXXX are citizens of Mexico. Ms. XXXX is the designated representative for their twin daughters, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, who are also Mexican citizens. [2] Mr. XXXX, a businessman, left his country and came to Canada on XXXX XXXX, 2017. He left because of repeated assaults and extortion by police officers and people affiliated with the organized crime group known as Los Zetas. After her husband left, as a result of his departure, Ms. XXXX was sexually assaulted and extorted. She joined him in Canada on XXXX XXXX, 2017. [3] The Refugee Protection Division (RPD) concluded that an internal flight alternative (IFA) was available for the family in the Cancun region, where they would not face a risk to their lives or a risk of cruel and unusual treatment or punishment. The RPD concluded that it is not unreasonable for them to seek refuge there. [4] Ms. XXXX is appealing the determination of June 19, 2018, alleging that the RPD erred in concluding that an IFA exists in Cancun. She filed newspaper articles as new evidence. DETERMINATION OF THE APPEAL [5] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination that XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are neither Convention refugees nor persons in need of protection. ROLE OF THE REFUGEE APPEAL DIVISION [6] The RAD reviews RPD decisions after carrying out its own analysis of the record, applying the correctness standard of review.1 The exception to this rule concerns situations in which the RPD enjoyed a meaningful advantage. In this situation, the RAD may show deference.2 [7] I will apply the correctness standard of review and carry out an independent analysis of the record, including reviewing all the evidence and listening to the recording. NEW EVIDENCE [8] Ms. XXXX is filing new evidence on appeal, that is, four newspaper articles: - Mexiconewsdaily article dated January 24, 2017, entitled "In Quintana Roo, Its Doña Lety Vs. Zetas" - 9news article dated April 12, 2018, entitled "How Cancun Went From Resort Paradise To Murder Capital" - Tuscon.com article dated April 8, 2012, entitled "Cancun Can Do For A Spring Break" - Miami Herald article dated April 12, 2018, entitled "Are Tourists At Risk? Cancun Murders Spike As Drug Cartels Wage A Bloody Turf War" - CBC article dated February 9, 2018, entitled "Mexico Nabs Alleged Leader Of Feared Drug Cartel Los Zetas" [9] Pursuant to subsection 110(4) of the IRPA, it must first be determined whether the evidence a) arose after the rejection of the claim; b) was not reasonably available; or c) was such that the person could not reasonably have been expected in the circumstances to have presented it at the time of the rejection. [10] All of the articles filed were published between April 2012 and April 2018, that is, before the refugee protection claim was rejected. They were therefore available. Based on the statement included with the appeal, the RPD's lack of understanding in choosing Cancun as an IFA justifies admitting this new evidence. In preparing for the hearing, they could not have known that they would need to establish the risk they would face in this location or that it was unreasonable for them to seek refuge there. [11] This evidence is credible and relevant, but it is not new evidence, as it reiterates facts identified as early as 2012. Therefore, I cannot accept it. ANALYSIS [12] The determinative issue is the IFA. [13] The RPD proposed Cancun as a location where the family could take refuge in Mexico. In response, the family pointed out that the police officers Mr. XXXX dealt with work alongside organized crime gangs. The police have access to various databases maintained by various government agencies and would able to locate them because they are required to register with them, wherever they go in Mexico. [14] In addition, it is advanced that the organized crime group the couple had run-ins with is the Zetas. The RPD considered that at the time of the hearing, the Quintana Roo territory, where Cancun is located, was known not to be under the control of the Zetas, but rather of the Gulf Cartel. According to the Mexico Peace Index 2017,3 which ranked the states from most to least peaceful, the Quintana Roo region was ranked 9th out of 32. As an example, their hometown of XXXX, located in the Nuevo Leon state, was ranked 25th. [15] This led the RPD to conclude that it was not unreasonable to expect the appellants to move to Cancun. [16] However according to the Mexico Peace Index 2019, which can be found in the most recent National Documentation Package (NDP) for Mexico dated August 30, 2019,4 Quintana Roo now ranks 29th, that is, even more dangerous than Nuevo Leon, which now ranks 17th of the 32 states. [17] In my opinion, the RPD's decision that they could move to Cancun is therefore incorrect. [18] Now, would it be possible for them to relocate elsewhere? [19] The panel submitted to the appellants the possibility that an IFA might be available to them in Mexico City and invited them to file submissions on this subject. The submissions received concern the most recent NDP and I will also refer to it. [20] According to the submissions received regarding the proposed IFA location, the agents of persecution are members of the Los Zetas cartel and corrupt police officers who work for the cartel. [21] The requirement for Mexicans to register in various databases for tax, voting, education and vehicle registration purposes makes it easier for them to be found by police officers with access to these databases. [22] Tab 7.21 of the NDP on Mexico dated August 30, 2019,5 states that Los Zetas is also present in Mexico City. However, a careful review of the NDP reveals that a number of groups share the territory, the most influential apparently being the Tierra Caliente factions. [23] Moreover, it appears, based on Tab 7.15,6 that the power of the various cartels has become fragmented. According to a US Congressional Research Service report on organized crime and drug trafficking organizations in Mexico, groups like Los Zetas have been decimated by government actions and wars they have waged against each other. Activities are generally localized, as the fragmented cells do not communicate with each other. [24] Given the number of different factions present in Mexico City, on a balance of probabilities, members of Los Zetas in XXXX would not be in a position to communicate with factions in Mexico City. The argument that ties between police forces and Los Zetas support the conclusion that they have the ability to track down the XXXX family in Mexico City is speculation. As mentioned earlier and addressed in the submissions requested, Los Zetas controls a specific region and the balance of the evidence does not support the conclusion that they have the means to extend their power outside the region. [25] The appellants' submissions also argue that the actions taken against Mr. XXXX and his family escalated; therefore, there is an ongoing interest in targeting them for execution. Any interest that Los Zetas might have in them is limited to the XXXX area. Acts of violence in retaliation for failures are designed to intimidate others who are tempted to disobey. On a balance of probabilities, such actions taken outside XXXX are unlikely to have a coercive effect on others. [26] In my view, on a balance of probabilities, the XXXX family would not face a risk to their lives, a risk of cruel and unusual treatment or punishment, or a danger of torture in Mexico City. [27] The submissions filed also analyze the objectively reasonable nature of this IFA. [28] It is pointed out that Mr. XXXX permanent disability will prevent him from meeting his family's needs. As for his spouse, living conditions for women in Mexico City are deplorable, with a high femicide rate and substantial workplace sexual harassment issues. She is a victim of sexual violence, and the services that could assist and support her are fragmented and insufficient. As a result, these factors would plunge the family into a state of complete helplessness. [29] Tab 2.4 of the NDP on Mexico7 cites the PROSPERA program. Available in 28 states, it provides access to healthcare services for 12.4 million people not receiving social security. It also aims to support low-income households, both in kind and in the form of subsidies, to help them gain access to food, education, healthcare and the job market, and to foster their participation in productive, financial and social activities. [30] The same tab highlights a number of considerations in connection with the protection of women, both through legislation to counter femicide and through the implementation of policies to eliminate discrimination against women. Tab 5.48 cites the many efforts undertaken to mitigate inequities, including more severe criminal penalties for femicide and reducing the time frames for issuing restraining orders from 24 hours to 8 hours. [31] Given the introduction of social, medical and educational programs to assist those who are less fortunate and at risk of poverty, the balance of the evidence demonstrates that the state is able, on a balance of probabilities, to provide assistance to the XXXX family such that, on a balance of probabilities, it would not be unreasonable for them to take refuge in Mexico City. CONCLUSION [32] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD dismisses the appeal and confirms the RPD's determination that XXXX XXXX XXXXXXXX, XXXX XXXXXXXX XXXX XXXXXXXX, XXXX XXXX XXXX XXXXXXXX and XXXX XXXXXXXX XXXX XXXXXXXX are neither Convention refugees nor persons in need of protection. (signed) Richard Sheitoyan Me Richard Sheitoyan December 16, 2019 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb, Near, March 29, 2016; 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 National Documentation Package (NDP) on Mexico, August 31, 2017, Tab 1.5: Mexico Peace Index 2017. Institute for Economics and Peace. April 2017. 4 NDP on Mexico, August 30, 2019, Tab 1.5: Results and Findings. Mexico Peace Index 2018. Institute for Economics and Peace. April 20, 2018. 5 NDP on Mexico, August 30, 2019, Tab 7.21: Tracking Mexico's Cartels in 2019. Stratfor. Scott Stewart. January 29, 2019. 6 NDP on Mexico, August 30, 2019, 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 ... Immigration and Refugee Board of Canada. August 15, 2019. MEX106302.E. 7 NDP on Mexico, August 30, 2019, Tab 2.4: National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21: Mexico. United Nations. Human Rights Council. August 23, 2018. A/HRC/WG.6/31/MEX/1. 8 NDP on Mexico, August 30, 2019, Tab 5.4: Consideration of reports submitted by States parties under article 18 of the Convention: Mexico. United Nations. Convention on the Elimination of All Forms of Discrimination against Women. February 2, 2017. http://undocs.org/fr/CEDAW/C/MEX/9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-15648 MB8-15649 / MB8-15650 / MB8-15651 RAD.25.02 (April 4, 2019) Disponible en français 6 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 (April 4, 2019) Disponible en français