VB9-08549

RAD File / Dossier de la SAR : VB9-08549 VB9-08550 / VB9-08551 / VB9-08552 VB9-08553 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 XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision January 24, 2020 Date de la décision Panel Me Jo-Anne Pickel Tribunal Counsel for the persons who are the subject of the appeal Ramin Joubin Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX his spouse, XXXX XXXX XXXX XXXX, and their children XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX (Appellants) are citizens of Mexico who have appealed a decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. For the reasons that follow, their appeal is denied. [2] The Appellants fear that they would be killed or seriously harmed by members of the Cartel de Jalisco Nueva Generación (CJNG) if they return to Mexico. Mr. XXXX XXXX owned a business in which he made and delivered XXXX in Acatic in Jalisco state. He was targeted for extortion by the CJNG from 2012 until he could no longer pay extortion money in 2017. In early 2017, the Appellants went to visit Ms. XXXX XXXX parents in Guadalajara, also in Jalisco state. On their way home, the CJNG trapped them and asked if they had gone to the police. When Mr. XXXX XXXX said they had not, the CJNG told them not to otherwise he would pay the consequences in the most painful way because they would come after him and his family. The Appellants left Mexico and arrived in Canada in XXXX 2017. They claimed refugee status in August 2018. [3] The RPD generally found the Appellants' evidence about the events they experienced in Mexico to be credible. However, it did not agree with the inferences and speculations made by the Appellants based on the events they described. The RPD found that the Appellants had a viable internal flight alternative in Mérida in Yucatán state. Based on the evidence, it found that the CJNG was unlikely to track them down in Mérida, on a balance of probabilities. The Appellants challenge the RPD's findings in relation to the internal flight alternative issue. [4] For the reasons set out below, I do not agree with any of the reasons that the Appellants have provided for why they believe that the RPD erred with respect to the internal flight alternative issue. I find that the RPD was correct to find that the Appellants would have a viable internal flight alternative to Mérida. ROLE OF THE RAD [5] The Refugee Appeal Division (RAD) reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it.1 The exception to this rule is that the RAD may apply a deferential standard in some circumstances.2 I have conducted my own independent assessment of all the evidence in this case, including the audio-recording of the hearing. Unless specifically stated and explained below, I have applied a correctness standard in this case. ANALYSIS [6] The Appellants do not dispute the RPD's finding that their allegations have no nexus to a ground of persecution contained in the refugee Convention. This finding was correct; therefore, the Appellants' claims must be decided under s. 97 of the Immigration and Refugee Protection Act (IRPA) which is the section that provides protections for persons in need of protection. No error under first prong of the internal flight alternative analysis [7] The RPD did not err in finding that the evidence did not establish, on a balance of probabilities, that the Appellants would be subjected personally to a risk to their lives, or a risk of cruel and unusual treatment or punishment, or a danger of torture in Mérida. [8] The RPD rejected the Appellants' testimony at the hearing that the CJNG would find them anywhere in Mexico. It gave two main reasons for this finding. First, even if a newspaper article submitted by the Appellants reported that the CJNG was contesting territory in the Yucatán Peninsula, read as a whole, the documentary evidence did not establish that the CJNG had any meaningful influence over territory in the Yucatán Peninsula. The second main reason provided by the RPD was the fact that, despite knowing where Mr. XXXX XXXX family lives in Acatic, the CJNG had not asked them about the Appellants after their departure from Mexico. No error due to failure to mention evidence [9] I do not agree with the Appellants that the RPD erred in failing to specifically refer to certain parts of the Appellants' evidence in its analysis. At para. 3 of their memorandum, the Appellants list five parts of their evidence that were accepted by the RPD and they argue that the RPD erred in not specifically referring to two of these parts in its decision. The two were the CJNG's ambush of the Appellants upon their return from visiting Ms. XXXX XXXX parents in Guadalajara in early XXXX 2017 and the Appellants' evidence that the CJNG perceived them to be wealthy. [10] Even if the RPD did not explicitly refer to the ambush and the perception of wealth, it is presumed to have taken into consideration all of the evidence. In any event, I do not find that these factors alter the conclusion that the CJNG would not be likely, on a balance of probabilities, to track the Appellants down in Mérida. While I accept that the fact that the CJNG may have known that the Appellants left their home to go to Ms. XXXX XXXX parents place in Guadalajara shows a certain degree of interest in the Appellants, the fact remains that Guadalajara is located in Jalisco state which is the CJNG's home base. Therefore, I do not agree with the Appellants that this incident alters the RPD's conclusion that the CJNG are unlikely to track the Appellants down in a state more than 1800 kilometers away where they have no meaningful control or influence. I note further that the fact that there was no evidence of the CJNG ever returning to ask Ms. XXXX XXXX parents about the Appellants' whereabouts further supports the second factor relied upon by the RPD-that is, the CJNG's failure to contact the Appellants' family members to ask about their whereabouts after they left Mexico. [11] With respect to the RPD's failure to mention the Appellants' evidence that the CJNG perceived them to be wealthy, I note, to begin, that this was the Appellants' perception of what the CJNG thought. Even if Mr. XXXX XXXX was able to buy an expensive house with an inheritance he received after his mother's death, they also testified that he ran a XXXX business. Even if the CJNG did perceive the Appellants to be wealthy, at most, this might mean an increased interest in them. In my view, this evidence still does not outweigh the two most significant factors relied upon by the RPD set out above as to why the evidence did not establish, on a balance of probabilities, that the CJNG was likely to track the Appellants down in Mérida. [12] For these reasons, I do not agree with the Appellants that the RPD erred in omitting to mention certain parts of the Appellants' evidence in its decision. RPD did not selectively use country conditions evidence of the CJNG's violent practices [13] I do not agree with the Appellants that the RPD erred in failing to specifically refer to the articles submitted by the Appellants in their post-hearing submissions which are listed at para. 17 of their memorandum of appeal. All of the articles listed by the Appellants speak to the importance of extortion for cartels like the CJNG and the brutal level of violence displayed by the CJNG. None of the articles provided information to support the Appellants' allegation that the CJNG were likely to track them down in Mérida in Yucatán state. The only article listed by the Appellants that comes close to being relevant to this issue is an article indicating that many of the murders in Mexico can be chalked up to the CJNG's push for territory. However, the article goes on to state that vast burial sites have been discovered in states where the cartel has been most aggressive, like Veracruz. The article does not indicate that the CJNG is making a push for territory in the Yucatán. For these reasons, I disagree with the Appellants that the RPD erred by failing to refer to the articles they listed at para. 17 of their memorandum. No error in assessment of CJNG's presence in Yucatán state [14] I do not agree with the Appellants that the RPD erred in its assessment of the documentary evidence in relation to the CJNG's activities in Yucatán state. [15] The Appellants refer to four documents that they say the RPD failed to properly take into consideration in this case. They argue that the four documents establish that the CJNG has a presence in Yucatán states. I disagree. [16] The Appellants are correct to state that the report from the Congressional Research Service found at Tab 7.2 of the National Documentation Package (NDP) for Mexico indicates that the CJNG has national reach and that it is entering new areas as other cartels have weakened.3 However, the report specifically identifies the areas in which the CJNG has expanded at p. 30 of the report and Yucatán state is not one of them. The report also indicates that the CJNG has battled factions of other cartels in Tabasco, Veracruz and Buanajuato. Again, there is no mention of Yucatán state. Finally, the report includes a map at p. 33 which shows the territory over which the CJNG has influence as well as contested territory. The CJNG is not shown to have any influence in Yucatán state. [17] While the Appellants did submit an academic journal article from 2018 which has a brief mention in a table contained in the document that the CJNG is disputing leadership with rivals or has an alliance in the Yucatán, the journal does not otherwise mention the CJNG having meaningful influence in the Yucatán. In addition, as noted by the RPD, the Appellants submitted a news article from 2018 which stated that the CJNG was contesting territory in the Yucatán. In my view, the RPD did not err in preferring to rely upon a more recent research report from 2019 that is found at Tab 7.21 of the NDP for Mexico.4 Like the report at Tab 7.2, the report at Tab 7.21 does not indicate that the CJNG has any influence in Yucatán state. I would add that a 2019 article from InSight Crime found at Tab 7.12 of the NDP for Mexico also does not indicate that the CJNG has influence in Yucatán State. At p. 2, the report lists 22 states in which the CJNG operates and the list does not include Yucatán state.5 In addition, as noted by the RPD, the documentary evidence establishes that Yucatan state is the most peaceful state in Mexico with the lowest homicide rate and the third-lowest violent crime rate.6 [18] Based on the above, I find that the RPD did not err in relying upon the most recent evidence contained in the NDP for Mexico to find that the CJNG has no meaningful influence in the Yucatán. It also did not err in considering this to be a significant factor supporting its conclusion that the CJNG was unlikely, on a balance of probabilities, to track the Appellants down in Mérida on the Yucatán Peninsula. RPD did not apply incorrect test [19] I disagree with the Appellants that the RPD applied an incorrect test by requiring a guarantee that the CJNG would track the Appellants down in Mérida. There is absolutely no merit to this claim. The paragraphs that the Appellants point to are paragraphs 6 and 11 of the RPD's decision. In both those paragraphs, the RPD correctly stated the test as requiring evidence showing "on a balance of possibilities" that the Appellants would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture. The RPD did not rely on speculation [20] I do not agree with the Appellants that the RPD erred in rejecting their inferences while instead basing its decision on its own speculative inferences. [21] Even accepting that the CJNG had extorted the Appellants for five years, ambushed them on their way back from Guadalajara, and warned them not to go to the police or the would suffer the consequences, none of the above are sufficient to establish that the CJNG would likely consider them to be valuable enough targets to track them into territory where they have no meaningful influence. Moreover, the CJNG's failure to contact any of the Appellants' family members who still reside in Acatic or elsewhere in Jalisco state is further evidence on which the RPD correctly concluded that the CJNG likely does not have the kind of interest and motivation necessary to invest the resources to track them down in Mérida. [22] For the reasons set out in paragraphs 13-18 above, I do not agree that the documentary evidence submitted by the Appellants supported their claim that the CJNG was likely to track them down in Mérida. [23] I also do not agree that the RPD's assessment was illogical or speculative. As noted in paragraph 17 above, the RPD's assessment was supported by the most recent documentary evidence before it which was the 2019 evidence in the NDP for Mexico. [24] I also do not agree with the Appellants that the RPD erred in its reliance upon the CJNG's failure to approach their family members who remained in Acatic. The Appellants misunderstand the point being made by the RPD when they argue that the Appellants are a better target than Mr. XXXX XXXX parents who are people of limited means. As noted by the RPD, the CJNG has not approached the Appellants' family members who remain in Acatic or elsewhere in Jalisco state to ask about the Appellants' whereabouts. If the CJNG had a significant interest in tracking the Appellants down, it is to be expected that one of the first things they would do is to approach their family to ask where they are. However, they have not done so. I do not find that the RPD erred in relying upon this factor to find that the CJNG likely do not have the interest or motivation necessary to track the Appellants down in Yucatán state. [25] I disagree with the Appellants' arguments regarding the CJNG's alleged push for control in the Yucatán. As stated above, the RPD correctly relied upon the most recent evidence to find that the CJNG has no meaningful influence in Yucatán state. [26] Finally, I do not find relevant any of the documents from the NDP for Mexico cited by the Appellants at a paragraphs 65-74 of their memorandum. All of this evidence is general evidence regarding police corruption and the links between cartels and the police. In my view, none of this evidence establishes that the CJNG would have the interest or motivation to track the Appellants down in Mérida where they have no meaningful influence. No error under second prong of the internal flight alternative test [27] I do not agree with the Appellants that the RPD erred in finding that it was not unreasonable to expect the Appellants to relocate to Mérida in the circumstances of this case. No error in finding about Ms. XXXX XXXX mental health issues [28] I do not take issue with the case law cited by the Appellants about the treatment of psychological reports that indicate a significant risk of re-traumatization if a claimant returns to their country. However, the RPD correctly found that neither of the two reports submitted by the Appellants spoke to any anticipated impacts on Ms. XXXX XXXX mental health of a return to Mexico or of a relocation to Mérida in particular. Therefore, the RPD correctly found that the reports did not establish that Ms. XXXX XXXX life and safety would be jeopardized if the Appellants were to relocate to Mérida. [29] I also do not agree with the Appellants that Ms. XXXX XXXX subjective fear of returning to Mexico is a key factor, the key issue is the objective reality of whether the Appellants could live safely in Mérida and whether it is objectively reasonable to expect them to relocate there. For the reasons set out above, any subjective fear on Ms. XXXX XXXX part that the CJNG would likely track the Appellants down in Mérida is not supported by the objective evidence in this case. In addition, as correctly pointed out by the RPD, there was no evidence to suggest that Ms. XXXX XXXX would not be able to access health care and treatment in Mérida if she were to experience an escalation in symptoms upon relocating there. [30] Finally, I do not agree with the Appellants that the RPD erred in finding that Mr. XXXX XXXX would likely be able to find employment of the kind he performed in Mexico or that he currently performs in Canada which would be sufficient to support the Appellants in Mérida. While the Appellants argue that the exact machine that Mr. XXXX XXXX uses in Canada does not exist in Mexico, there is no reason to believe that Mr. XXXX XXXX would be unable to find a similar job as a XXXX in Mérida. Even if Mr. XXXX XXXX is allegedly illiterate and must care for his wife, he faced the same circumstances while he was in Mexico and was able to run his own tortilla business before the Appellants left. There is no credible and reliable evidence that would establish that he would not be able to perform similar work in Mérida. CONCLUSION [31] For the above reasons, the RAD dismisses the appeal. I confirm the decision of the RPD that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX are neither Convention refugees nor persons in need of protection. (signed) "Jo-Anne Pickel" Me Jo-Anne Pickel January 24, 2020 Date JP/tm 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rozas Del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Tab 7.2 of the NDP for Mexico (August 30, 2019). 4 Tab 7.21 of the NDP for Mexico (August 30, 2019). 5 Tab 7.12 of the NDP for Mexico (August 30, 2019). 6 Tab 1.5 of the NDP for Mexico (August 30, 2019). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9- 08549 VB9- 08550/ VB9- 08551/ VB9- 08552 VB9- 08553 RAD.25.02 (April 04, 2019) Disponible en français 7 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 04, 2019) Disponible en français