MC0-03304

RAD File No. / No de dossier de la SAR : MC0-03304 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 March 19, 2021 Date de la décision Panel Mokhtar Lamani Tribunal Counsel for the person who is the subject of the appeal Jamal A Fraygui 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 is a citizen of Mexico. He is appealing the decision of the Refugee Protection Division (RPD) dated January 24, 2020, rejecting his refugee protection claim based on the existence of an internal flight alternative (IFA) for him in Mexico in the cities of Guadalajara and Querétaro. [2] The appellant alleges that the RPD erred: a. in misjudging his credibility.1 b. in concluding that appellant was not persecuted by the Zetas.2 c. in concluding that the appellant had an IFA in Mexico since his wife and children, who are still in Mexico, were not bothered by the Zetas.3 [3] The appellant is asking the Refugee Appeal Division (RAD) to allow his appeal, to order a hearing before deciding this appeal and to set aside the RPD's determination.4 [4] The appellant is not citing any new evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), but wishes to be heard by the RAD before this appeal is determined.5 [5] The determinative issue before the RAD, as it was before the RPD, is the existence of an IFA for the appellant in Guadalajara and Querétaro. DETERMINATION [6] The RAD confirms the RPD's determination and dismisses the appeal. BACKGROUND [7] According to his amended Basis of Claim Form (BOC Form), the appellant, a XXXX XXXX XXXX XXXX, alleges fear of three men who identified themselves as members of the Zetas cartel. These men started demanding the sum of XXXX XXXX XXXX pesos from him every week starting XXXX XXXX XXXX 2017. [8] Unable to continue paying this amount, the appellant was assaulted by these individuals in XXXX 2017, and they threatened to kill him. [9] On XXXX XXXX XXXX 2017, the appellant filed a complaint with the authorities and decided not to return to work. [10] The appellant, having learned that the three individuals were looking for him, went to live with his aunt in Mexico City. [11] In XXXX 2018, two individuals reportedly came to his aunt's house, asking questions about him. [12] The appellant was frightened and left Mexico on XXXX XXXX XXXX 2018, and claimed refugee protection in Canada. Holding an oral hearing before the Refugee Appeal Division [13] The RAD appeal process is generally a paper-based process. Prior to holding an oral hearing, new evidence must be accepted on appeal in accordance with subsection 110(4) of the IRPA and the new evidence, if accepted, must raise a serious issue with respect to the appellant's credibility, must be central to the decision with respect to the refugee protection claim, and would justify allowing or rejecting the refugee protection claim. [14] Since no new evidence was presented or accepted, there is no reason to hold an oral hearing in this case. STANDARD OF REVIEW [15] The RAD reviews RPD decisions by applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing credibility.6 That being said, the role of the RAD is to determine whether the RPD did in fact err, as alleged by the appellant. [16] The RAD applied the correctness standard in this case. ANALYSIS [17] The appellant submitted an affidavit that repeats the history of his allegations in Mexico and the same arguments made in his memorandum. A) Credibility Visit by one or two assailants to the appellant's aunt in XXXXor XXXX 2018 [18] The RPD drew a negative inference from contradictions between appellant's written account and his oral testimony regarding his assailants' visit to his aunt's home in Mexico City.7 [19] The appellant specifies in his written account that the visit of his two assailants to his aunt in Mexico City took place in XXXX 2018. When asked by the RPD during the hearing to describe this incident, he testified that it took place on XXXX XXXX and that it involved one person. [20] The RPD also questioned the appellant about these two contradictions, and the appellant simply stated that he was wrong in both instances. The RPD was not satisfied with his responses and found that this undermined the appellant's credibility. [21] The appellant repeats paragraphs 12 to 16 of the RPD's reasons verbatim in his memorandum and acknowledges that he made a mistake because it was his first time testifying before a panel, and that despite his willingness, he was stressed and had difficulty managing his stress.8 [22] The RAD cannot accept these arguments. Upon listening to the recording, at no time during the hearing did the appellant show any difficulty in testifying in certain respects, nor did he (or his counsel) mention his inability to do so due to stress. [23] The RPD conducted the hearing well, making it clear at the outset of the hearing what the determinative issues were in the claimant's case. Its questions were clear and courteous and it ensured that the appellant felt comfortable and was able to testify. Stress cannot explain the numerous serious and significant credibility issues that were raised during the hearing. The telephone call between the appellant and his cousin [24] The RPD drew a negative inference from the omission in the appellant's written account of a telephone call he allegedly received from his cousin two months before the RPD hearing, when he was already in Canada. His cousin reportedly informed him that his agents of harm were continuing to ask questions about him.9 [25] When the RPD confronted the appellant to this effect, he initially replied that the telephone call had occurred barely two months ago, which explains its omission from his written account. The RPD reminded him that he had amended his BOC Form on December 27, 2019 (i.e., 18 days before the RPD hearing). The appellant testified that he did not find it worth mentioning in his written account. The RPD questioned him about whether he thought it was trivial that his cousin told him on the telephone that his agents of harm were still looking for him. His answer was [translation] "I forgot to say that." [26] The RPD found the explanation for this omission unreasonable and concluded that, on a balance of probabilities, the agents of harm did not contact the appellant's cousin to ask about him.10 [27] The appellant repeats paragraphs 18 to 25 of the RPD's reasons verbatim in his memorandum and submits that he maintains: - that his cousin informed him two months ago that his agents of harm were still looking for him.11 - that the agents of harm showed up at his aunt's home.12 - that despite the legal assistance he received during the refugee protection claim process, he is unable to assimilate certain concepts of the procedure.13 - that even though he made amendments to his written account, he continues to think that he cannot add any more.14 - that based on his understanding, the information obtained orally from his family is of no importance in the context of his refugee protection claim.15 - that he does not have much education, which explains his difficulty in understanding how the evidence works in his refugee protection claim.16 [28] The RAD disagrees and finds these arguments to be without merit, and that they cannot establish the existence of errors made by the RPD in its assessment of the appellant's credibility. [29] First, maintaining his positions regarding the attackers' visit to his aunt or the call from his cousin in no way shows that the RPD erred in its findings. Maintaining his positions does not explain the contradictions and omissions raised by the RPD. [30] Second, the case law is clear on this point. The Federal Court has stated, "When the witness has difficulty providing adequate and direct answers, the panel may make a negative credibility finding."17 [31] Lastly, the RAD would have expected the appellant to explain the contradictions raised by the RPD regarding the visit to the appellant's aunt, the number of agents, as well as the omission in the written account of the cousin's call in a consistent and satisfactory manner. It draws a negative inference. The RPD correctly found that these events were not established on a balance of probabilities. [32] The RAD finds that the RPD did not err in assessing the appellant's credibility. B) Internal flight alternative [33] In Rasaratnam18 and Thirunavukkarasu,19 the Federal Court of Appeal defines the test to be applied to assess an IFA. The test is two-pronged: 1. "[T]the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists."20 2. Conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.21 [34] Both of the prongs must apply for it to be possible to conclude that an IFA exists. First prong [35] The RPD concluded that there is an IFA for the appellant in the cities of Guadalajara, in the state of Jalisco, and Querétaro in the state of Querétaro.22 [36] In doing so, the RPD considered the following facts: - Zetas' interest: The appellant testified that he went to live with his cousin in XXXX XXXX (a half-hour from his aunt's home) from XXXX XXXX to XXXX XXXX XXXX 2018. He worked every day at his cousin's XXXX XXXX without ever having an incident relating to his fear of the Zetas. - Zetas' capacity: According to the objective evidence,23 the city of Guadalajara is not under the influence of the Zetas. In addition, the Zetas cartel is in decline and allegedly only remnants of it still exist. As for the city of Querétaro (where the appellant's wife and two children live), the RPD asked him whether his immediate family had any problems in that city. He stated that his family has had no problems since he left Mexico. [37] The RPD found that once the appellant was no longer working as a XXXX XXXX XXXX, the Zetas had no interest in chasing him in the suggested IFAs. The Zetas did not seek him out when he lived in XXXX XXXX, nor did his family experience any incidents in Querétaro related to the appellant's fear.24 [38] Accordingly, the RPD found that the appellant has not established, on a balance of probabilities, that his agents of harm are motivated or able to search for him in the proposed IFAs or that he would be subjected to a risk to his life, a risk of cruel and unusual treatment or punishment, or a danger of torture in those IFAs.25 [39] The appellant reiterates verbatim the RPD's paragraphs 31 to 36 in his memorandum and submits that he acknowledged that he had no problems during the period from XXXX XXXX to XXXX XXXX XXXX 2018 (in XXXX XXXX). However, the incidents that occurred before and after his departure from Mexico have convinced him that the Zetas are determined to find him.26 [40] The appellant also contends that even though he is no longer a driver, any job he takes would be of interest to the Zetas.27 [41] The appellant continues his arguments regarding the Zetas' ability to locate him, reiterating the RPD's paragraphs 37 to 39 verbatim and submitting: - that he has no one to support and house him until he can find a job.28 - that he was frank in answering that his family had no problems with the Zetas.29 - although he was no longer living with his family, the Zetas may have said they would attack his family to terrorize him and force him to pay them.30 [42] The RAD disagrees. [43] First, for the period before the appellant left Mexico, the appellant acknowledged that he did not have a problem during the time he lived in XXXX XXXX. [44] Second, after leaving Mexico, the appellant alleged only one incident, namely, the telephone call from the agents of harm to the appellant's cousin, which the RPD considered did not occur because of its omission from the appellant's written account. [45] Finally, during the appellant's stay in XXXX XXXX, he testified that he worked at his cousin's XXXX XXXX and was never bothered by the Zetas as he was when he worked as a XXXX XXXX XXXX. [46] The RAD finds that there is nothing in the evidence presented to show that the agents of harm would have any interest in tracking the appellant in any of the locations proposed by the RPD. [47] The RPD's conclusion regarding the first prong of the IFA is correct. Second prong [48] The RPD found that the appellant had not demonstrated that the proposed IFAs would be objectively unreasonable in all the circumstances.31 [49] In this regard, the RPD noted that the appellant testified orally that he had always worked in Mexico, including for himself, and that he worked again when he left his job as a XXXX XXXX XXXX. The RPD also noted that, apart from his fear of the Zetas, the appellant gave no other reason why he could not move to the proposed IFAs. [50] The appellant reiterates verbatim paragraphs 44 to 48 of the RPD decision to argue: - that he cannot invent other sources of problems simply to properly answer the RPD's question.32 - that he has had problems with the Zetas and that he will always be a person of interest to them, because even with another job, he will remain a potential source of income for the Zetas that he reported to the authorities despite their warnings.33 [51] The RAD cannot agree with the appellant's arguments; it finds them to be without merit and not relevant to the reasonableness of the proposed IFAs, as the appellant did not present any arguments demonstrating that would be unreasonable for him to settle in either of the two suggested cities. [52] The RAD is of the opinion that there is an IFA in Guadalajara or Querétaro. [53] The RPD's conclusion relating to the second prong of the IFA is correct. [54] The RPD's decision is correct. CONCLUSION [55] The RAD dismisses the appeal and confirms the RPD's determination that the appellant is not a Convention refugee or a person in need of protection. (signed) Mokhtar Lamani Mokhtar Lamani March 19, 2021 Date IRB translation Original language: French 1 Appellant's memorandum, para. 30, point a) of the grounds of appeal. 2 Ibid., point b). 3 Ibid., point c). 4 Conclusions in the memorandum. 5 Appellant's statement, paras. 2 and 3. 6 Canada (MCI) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (MCI), 2018 FC 1145. 7 Refugee Protection Division (RPD) reasons, para. 17. 8 Appellant's memorandum, para. 32. 9 RPD reasons, paras. 23 and 24. 10 Ibid., para. 25. 11 Appellant's memorandum, para. 34. 12 Ibid., para. 35. 13 Ibid., para. 36. 14 Ibid., para. 37. 15 Ibid., para. 38. 16 Ibid., para. 39. 17 Gjergo v. Canada (M.C.I.), 2004 FC 303, para. 22. 18 Rasaratnam v. Canada (MEI), [1992] 1 F.C. 706 (C.A.). 19 Thirunavukkarasu v.Canada (MEI) [1994] 1 F.C. 589 (C.A.). 20 Supra, endnote 2, p. 710. 21 Supra, endnote 2, pp. 709 and 711. 22 RPD reasons, para. 27. 23 National Documentation Package on Mexico, August 30, 2019, Tab 7.21. 24 RPD reasons, para. 42. 25 Ibid., para. 43. 26 Appellant's memorandum, paras. 41 and 42. 27 Ibid., para. 43. 28 Ibid., para. 45. 29 Ibid., para. 46. 30 Ibid., paras. 47 and 48. 31 RPD reasons, para. 49. 32 Appellant's memorandum, para. 50. 33 Ibid., paras. 51 and 52. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-03304 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français