TC1-12204

RAD File / Dossier de la SAR : TC1-12204 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Date of decision January 17, 2022 Date de la décision Panel Karen McGovern Tribunal Counsel for the person who is the subject of the appeal Mary Jane Campigotto 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] I dismiss this appeal. XXXX XXXX XXXX (Appellant) is a citizen of Mexico. [2] The Appellant worked XXXX XXXX XXXX with his father in XXXX XXXX XXXX XXXX XXXX. He received a call from a man he believes was associated with Los Zetas demanding that he work with them to steal gasoline as there was a gas pipeline running through XXXX XXXX. When he refused, the Appellant was threatened. He moved to the state of XXXX with his wife and child. The Appellant's wife was abducted in XXXX 2016 while out shopping. The Appellant and his daughter stayed with his sister in Toluca and received a phone call threatening him to pay XXXX XXXX pesos if he wanted to see his wife again. The Appellant could not raise the money, so he sent his daughter to live with his parents and made two unsuccessful attempts to cross into the U.S. In early 2017, the Appellant returned home, where he worked until he was able to fly to Canada in XXXX 2018. [3] The Refugee Protection Division (RPD) found that credibility and an internal flight alternative (IFA) in Cabo San Lucas, Baja California Sur were determinative. The Appellant lacked subjective fear for returning to his home for 18 months and for the nine-month delay in seeking protection in Canada. A letter from the Appellant's sister was given no weight as it was not translated. The Appellant's testimony that the agents of harm (AOH) are Los Zetas is speculative, and the AOH's interest in the Appellant was related to his proximity to a gas pipeline. Even if the AOH were Los Zetas, they have no presence in the proposed IFA and are now split into warring factions. [4] The Appellant argues that the RPD's credibility findings are not supported by the totality of testimony. He argues that the RPD erred by finding his testimony about Los Zetas was speculative and that the RPD failed to consider a translation of the letter from the Appellant's sister. The Appellant further argues that the RPD misstated the test for an IFA and that the IFA is objectively unreasonable because the IFA is unsafe, and because of the impact of the Appellant's emotional trauma and the lack of childcare for his daughter. [5] The determinative issues are credibility and IFA. [6] The RPD did err in failing to consider the translation of the letter from the Appellant's sister and misstated the test for the first prong of the IFA test; however, these errors were not significant. The RPD did not err in finding that the Appellant's testimony that the Los Zetas are the AOH is speculative or in finding that the IFA is viable. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE [8] The Appellant provided two written statements regarding new evidence he is submitting in this appeal. In the first statement, the Appellant indicates he is submitting a Written Statement.1 In a second written statement, the Appellant indicates he is submitting new evidence which arose after the RPD's decision or could not have been anticipated because there was no notice of the proposed IFA locations prior to the hearing; however, he does not indicate what the new evidence is.2 In addition, in her memorandum, Counsel requests that the translation of the Appellant's sister's letter also be admitted as new evidence.3 [9] Since the translation of the Appellant's sister's letter is already in the RPD record, it is not new evidence. Having reviewed the Appellant's record, I find the only new document submitted is the Appellant's written statement. The evidence presented by the Appellant is rejected [10] According to the Law,4 I can only accept evidence that: (i) arose after the RPD's decision; or (ii) was not reasonably available at the time of the decision; or (iii) that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [11] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.5 [12] The Appellant's written statement is signed XXXX XXXX, 2021.6 The statement includes all of the content of the Appellant's amended narrative.7 In addition, it contains statements about: (1) why the Appellant did not claim protection right away in Canada; (2) that he paid LC and his mother XXXX XXXX to write out his narrative; (3) that he decided to submit an addendum to his original narrative, including only the truth about what he has experienced; (4) how cartels consider fleeing an act of defiance and Los Zetas can still send one of their members to kill him in another area; (5) his wife's mother contracting COVID-10, which also prevented her from trying to get his wife's death certificate; and (6) having XXXX XXXX XXXX XXXX, trouble remembering dates and details and nightmares about his missing wife. [13] The Appellant has provided no submissions as to how the statement meets the requirements described above as required by Rule 3(3)(g)(iii).8 The Refugee Appeal Division (RAD) Rules are clear that full and detailed submissions must set out how any proposed new evidence meets the admissibility requirements and how that evidence relates to the Appellant.9 Nonetheless, I have reviewed the Appellant's record and considered the available information in my assessment. [14] The content that is identical to the Appellant's amended narrative is already in the RPD record. Some of the additional statements are attempts to summarize the Appellant's testimony or provide new evidence; the remainder are submissions about issues in the Appellant's claim. None of the statement contains any information that was not already before the RPD or that could not have been reasonably provided to the RPD, nor does the information concern events that arose after the RPD's decision. The Federal Court has made clear that submitting evidence under subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) is not an opportunity to correct a deficient record nor is it to be used as a vehicle to advocate for the Appellant. The statement is not admitted as new evidence. Request for an oral hearing is denied [15] The Appellant provided two different statements requesting an oral hearing. In one statement, the Appellant indicates that he is requesting a new hearing "given the procedural fairness issues"10 and in the other, if I find that credibility is an issue in this appeal.11 [16] Since I have not admitted any new evidence, I do not have jurisdiction to hold an oral hearing. The Appellant's requests for an oral hearing are denied. ANALYSIS [17] My role is to look at all of the evidence and decide if the RPD made the correct decision.12 Undisputed findings [18] The Appellant has not challenged the following RPD findings: (1) The Appellant's return to XXXX XXXX XXXX for 18 months seriously undermines his subjective fear, and his testimony surrounding it seriously undermines his overall credibility;13 and (2) The Appellant did not provide any persuasive evidence that he had attempted to obtain corroborative documents, which undermines his overall credibility and allegations of harm in Mexico.14 [19] I have reviewed the RPD record and the hearing transcript and find no error in these findings. Appellant's testimony that Los Zetas are the agents of harm is speculative [20] The Appellant argues that objective evidence demonstrates that Los Zetas steal fuel in Veracruz; therefore, the RPD's finding that the Appellant's testimony was speculative is unreasonable. I disagree. [21] I agree with the Appellant that objective documentation indicates that fuel theft is rampant in Mexico at large, that Veracruz is one of the top fuel theft states and that Los Zetas engage in fuel theft. I note, however, that country documentation in the National Documentation Package (NDP) indicates that Los Zetas are fragmented and do not control the state of Veracruz. Sources indicate that the Cartel Jalisco Nueva Generación is the dominant cartel in Veracruz.15 In addition, sources indicate that fuel theft is also carried out by local criminal groups, some of whom adopt the Zeta name to get the benefit of Los Zetas reputation.16 That fuel theft is carried out by cartels and criminal gangs is acknowledged in an article submitted by the Appellant, which states that: "Cartels like Los Zetas and the Santa Rosa de Lima Cartel, as well as smaller community gangs, have been stealing resources from PEMEX, the Mexican state-owned petroleum company, for decades."17 In my view, country documentation does not corroborate that fuel theft is only carried out by Los Zetas in Veracruz. The RPD's finding that the Appellant's testimony that the agents of harm are Los Zetas is speculative is not in error. I concur with the RPD's conclusion that the evidence suggests that the agents of harm are criminals operating in the Appellant's home area in Viejon Nuevo. RPD failed to consider translation of Appellant's sister's letter [22] The RPD gave no weight to a letter from the Appellant's sister, AVR, because it was not translated. This is a clear error, as the Appellant submitted a translation of the letter to the RPD on May 3, 2021, which is well before the RPD's decision on August 5, 2021. [23] I have reviewed the translation of the letter and note that AVR states that the Appellant and his daughter stayed with her in the year 2016 in Toluca, Mexico: From there, he left my house and moved to Neuvo Laredo. The girl, [the Appellant's daughter], stayed with me for a few days. My brother said he took her to our mother's place in XXXX, Municipality of XXXX XXXX.18 [24] The original letter is signed and accompanied by a photocopy of AVR's voter identification card, which provides her birth date and corresponds with the information given by the Appellant in his amended basis of claim.19 The letter corroborates the Appellant's narrative and testimony that he and his daughter stayed with AVR after they left XXXX, XXXX in 2016. I also note that the letter directly contradicts the Appellant's narrative20 and testimony21 that AVR took his daughter to XXXX XXXX because he knew that, if he returned to XXXX XXXX XXXX, the criminals would be waiting for him.22 I draw a negative inference as to the Appellant's credibility on this basis. The Appellant has a viable internal flight alternative in Cabos San Lucas First prong [25] I agree with the Appellant that the RPD erred in articulating the first prong of the test for determining whether there is a viable IFA by stating that "[the Appellant] bears the burden of proof to show that there is a reasonable chance that persecution will occur in the entire country and specifically in the proposed IFA."23 The law is clear that the first prong of the test involves an assessment of whether there is a risk to life or cruel and unusual punishment or treatment, on a balance of probabilities, in the proposed IFA. I do not, however, find that the RPD's analysis of the first prong was based on the inaccurate statement and therefore is not in error. Second prong [26] The Appellant argues that the proposed IFA is objectively unreasonable because there is a specific lack of safety in Cabos San Lucas based on the high level of crime and lack of state protection. I disagree. [27] As the RPD did, I acknowledge that criminality is a widespread problem in Mexico. A review of the most recent country documentation indicates that Baja California Sur continues to experience high levels of extortion.24 Sources do indicate that there is a decrease in violence in the state because the CJNG have total control.25 The Organized Crime and Violence in Mexico: 2020 Special Report states that Baja California Sur is among the states with the lowest homicide rates,26 and in the first half of 2020, the state reported no kidnappings.27 Several sources indicate that the violence in Baja California Sur is mostly directed at individuals in the drug trade.28 [28] Considering this objective documentation, I find that the risk of violence is generalized in Cabo San Lucas and the state of Baja California Sur, and it is lower than violence in many other Mexican states. [29] I am not persuaded by the Appellant's argument that there is no state protection in the proposed IFA. Whether there is adequate state protection is considered in the context of the allegations of harm, not from a general viewpoint. This question has been answered in the first-prong analysis. [30] In addition, the Appellant argues that the proposed IFA is objectively unreasonable because of the emotional and psychological trauma he has suffered in relation to his wife's disappearance. While it is apparent that the experience of having a loved one disappear would be extremely difficult, there is no evidence in the RPD record or the hearing transcript indicating that the Appellant has emotional and psychological trauma. The Appellant, himself, did not offer testimony about his emotional well-being and how it might impact him in the proposed IFA. The argument fails for a lack of evidence. [31] Finally, the Appellant argues that the IFA is objectively unreasonable because of a lack of childcare for his daughter. The Appellant did identify in his narrative that, if he returned to Mexico: I would be forced to find daycare for XXXX, which would be a further financial burden for me as a single father. This employment situation would tremendously hinder my family's wellbeing - particularly that of XXXX.29 The Appellant also testified that he would need to have daycare for his daughter and did not know if there were afterschool programs in the proposed IFA.30 I note, however, that the Appellant has not pointed to any objective documentation with respect to the availability of childcare or afterschool programs or related economic support in the proposed IFA. [32] My review of the country documentation indicates that the government provides financial subsidies for daycare to single parents who are working or going to school.31 The government also provides a school allowance through the Benito Juárez Scholarship Program, which consists of a monthly payment of 800 MXN per month to low-income families with children under the age of 18.32 Given that there is objective documentation indicating that there is some financial support for children attending school, I do not find that the proposed IFA is objectively unreasonable. I agree with the RPD that the proposed IFA is objectively reasonable considering the Appellant's personal circumstances. Additional arguments made by the Appellant [33] The remaining arguments made by the Appellant are of an extremely general nature. The Appellant submits that listening to the audio recording of the RPD hearing will show that the RPD's credibility findings are not supported by the totality of testimony. While the Appellant did identify errors in paragraphs 9, 14-15, 19-20, 23, 25-26, 28-50 of the RPD's reasons and decision and also identified errors at 00:16-00:17; 00:29-00:38; 00:40-00:49; 00:52-01:04; 01:22-01:30; and 01:52-02:03 in the audio recording, the Appellant's memorandum fails to make any specific submissions as to what the errors are and why they are errors. The Appellant also argues that the RPD misapprehended evidence, was overly vigilant in conducting a microscopic analysis, displayed a zeal to find inconsistencies, focused on peripheral matters and failed to consider all relevant testimony. Again, the Appellant has provided no submissions as to which findings are in error or why. [34] The Appellant has failed to provide full and detailed submissions explaining how the RPD erred as required by RAD rule 3(3)(g). The Federal Court has made clear that: it is the responsibility of the appellant, not the RAD, to establish that the RPD erred in a way that justifies the RAD's intervention. It is not the RAD's function to supplement the weaknesses of an appeal (Ghauri at para 33, citing Dhillon v Canada (Minister of Citizenship and Immigration), 2015 FC 321 at paras 18-20 and Huruglica at para 103). Justice Gleeson concluded that "appellants before the RAD that fail to specify where and how the RPD erred do so at their own peril".33 [35] I have, nonetheless, conducted an independent assessment and find no errors in the following RPD findings: (a) The Appellant's testimony about receiving a call while he was in Toluca was confusing; (b) The Appellant's nine-month delay in seeking asylum in Canada is not reasonably explained and is inconsistent with the Appellant's alleged fear; (c) The Appellant's testimony that his wife is dead is inconsistent with his narrative, in which he states she is missing; (d) Based on the Appellant's testimony, the AOH's interest in him is because he worked XXXX XXXX XXXX that had oil pipelines; (e) The Appellant does not have a profile that would lead to him being targeted personally, in the proposed IFA; rather, the evidence shows that the Appellant has been victimized by criminal elements; and (f) Los Zetas are now composed of a series of unconnected violent splinter groups, which reduces their ability to pursue him, and they have no presence in Cabos San Lucas. CONCLUSION [36] Considering all of the above findings, I find, on a balance of probabilities, that the Appellant does not face a risk to his life or a risk of cruel and unusual punishment or treatment if he were to return to Mexico. [37] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Karen McGovern Karen McGovern January 17, 2022 Date 1 Exhibit P-2, Appellant's Record, at p. 1. 2 Ibid., at p. 3. 3 Exhibit P-2, Appellant Record, at p. 67. 4 IRPA, S.C. 2001, c. 27, as amended, subsection 110(4). 5 M.C.I. v. Singh (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96; Raza v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 6 Exhibit P-2, Appellant Record, at pp. 4-15. 7 Exhibit RPD-1, RPD Record, at pp. 57-67. 8 Refugee Appeal Division Rules, SOR/2012-257, at Rule 3(3)(g)(iii); Abdi v. M.C.I. (F.C., no. IMM-566-18), Boswell, January 16, 2019, 2019 FC 54, at para. 25. 9 RAD Rules, at Rule 3(g); Paz v. M.C.I. (F.C., no. IMM-2195-19), Gagné, February 20, 2020, 2020 FC 280, at paras. 30-32. 10 Exhibit P-2, Appellant Record, at p. 3. 11 Ibid., at p. 67. 12 M.C.I. v. Huruglica (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas del Solar v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 13 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at p. 5, at para 21. 14 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at pp. 6-7, at para 27. 15 NDP for Mexico (September 29, 2021), item 7.6, Victoria Dittmar, Insight Crime, Why the Jalisco Cartel Does Not Dominate Mexico's Criminal Landscape, June 11, 2020, at p. 9; and item 7.7, ?Immigration and Refugee Board of Canada (IRB), Response to Information Request (RIR) MEX200733.E, The Jalisco New Generation Cartel (Cártel de Jalisco Nueva Generación, CJNG), its activities, areas of operation and influence; the ability of the CJNG to track and retaliate against people who move to other areas of Mexico, including Mérida..., September 2, 2021, at p.2. 16 NDP for Mexico (September 29, 2021), item 7.2, June S. Beittel, U.S. Congressional Research Service, Mexico: Organized Crime and Drug Trafficking Organizations, July 28, 2020, at p. 26. 17 Exhibit RPD-1, RPD Record, at p. 81. 18 Ibid., at p. 175. 19 Exhibit RPD-1, RPD Record, at pp. 68 and 168. 20 Ibid., at p. 61. 21 Transcript of the RPD Hearing, at pp. 13 and 16. 22 Exhibit RPD-1, RPD Record, at p. 61. 23 Exhibit RPD-1, RPD Record, RPD's Reasons and Decision, at p. 7, at para 31. 24 NDP for Mexico (September 29, 2021), item 7.11, Liberty Speciality Markets; red24, KRE in Mexico - KRE Global Monitor (December 2016 - March 2017), March 24, 2017, at p. 5. 25 NDP for Mexico (September 29, 2021), item 7.9, Laura Calderón et al., University of San Diego, Justice in Mexico, Organized Crime and Violence in Mexico, Analysis Through 2018, April 2019. 26 NDP for Mexico (September 29, 2021), item 7.10, University of San Diego, Justice in Mexico, Organized Crime and Violence in Mexico: 2020 Special Report, July 2020, at p. 62. 27 Ibid., at p. 64. 28 NDP for Mexico (September 29, 2021), item 7.4, U.S. Overseas Security Advisory Council, Mexico Country Security Report, August 6, 2021, at p. 9; and item 7.8, IRB, RIR MEX200732.E, ?The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatán state, State of Campeche, and Baja California Sur); ..., September 8, 2021, at p. 10. 29 Exhibit RPD-1, RPD Record, at p. 66. 30 Transcript of the RPD Hearing, at pp. 24-25. 31 NDP for Mexico (September 29, 2021), item 5.7, IRB, RIR MEX106364.E, Situation of single women and of women who head their own households without male support, including access to employment, housing and support services, particularly in Mexico City and Mérida (Yucatán) (2017-October 2019), February 5, 2020, at pp. 5-6. 32 NDP for Mexico (September 29, 2021), item 1.6, U.S. Social Security Administration, Mexico - Social Security Programs Throughout the World: The Americas, 2019, March 2020, at p. 9. 33 Murugesu v. M.C.I. (F.C., no. IMM-5724-15), Fothergill, July 19, 2016, 2016 FC 819, at para 27. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC1-12204 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