TC0-02775

RAD File / Dossier de la SAR : TC0-02775 TC0-02776 / TC0-02777 / TC0-02778 TC0-02779 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision January 4, 2021 Date de la décision Panel Desiree Pachkowski Tribunal Counsel for the persons who are the subject of the appeal Clement Osawe 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] I dismiss this appeal. [2] XXXX XXXX XXXX XXXX (MGS), XXXX XXXX XXXX XXXX (DGS), XXXX XXXX XXXX (GSR), XXXX XXXX XXXX XXXX (EMG) and XXXX XXXX XXXX XXXX (CMG) are citizens of Mexico. [3] The Appellants allege that they fear members of an organized crime group called Cartel Jalisco Nuevo Generacion (CJNG) in Mexico. They claim that members of the CJNG pressured DGS to traffic drugs to the United States (US)-Mexico border. When DGS refused, they claim that the CJNG kidnapped, assaulted, and threatened them on multiple separate occasions. [4] The Refugee Protection Division (RPD) found that the Appellants were not credible witnesses. It did not find that the Appellants established that the CJNG kidnapped, assaulted, and pressured DGS to sell drugs. [5] After an independent review, I find that the RPD did not err in its analysis. The Appellants' claims fail on credibility. DECISION [6] I dismiss the appeal. The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection. NEW EVIDENCE AND ORAL HEARING [7] The Appellants did not request an oral hearing. I may hold a hearing if there is new evidence that raises a serious issue about the Appellants' credibility, which is central to the claim, and if accepted would justify allowing or rejecting the claim. I did not hold an oral hearing because there is no new evidence on the record. BACKGROUND [8] In XXXX 2015, the Appellants claim that members of CJNG asked DGS to traffic drugs to the US-Mexico border. DGS went for XXXX with these individuals on several occasions. On XXXX XXXX, 2015, the Appellants allege that members of the CJNG kidnapped and assaulted DGS. They threatened to kill him if he did not join their group. DGS alleges that he was released from captivity and immediately went to the hospital, where he claims he was treated for three months. DGS alleges that he went into hiding following this incident. He claims that cartel members found him two years later and threatened to kill him if he refused to traffic drugs for them. He fled to Canada in 2017 after this incident. [9] GSR alleges that cartel members kidnapped her in XXXX 2017. She claims that they assaulted her and threatened to kill her if she refused to traffic drugs to Tijuana. She claims that they asked her to recruit elderly people to assist her in drug trafficking. Fearing for her safety, she fled to Canada in XXXX 2017. [10] MGS alleges that she became the cartel's target after GSR and DGS fled Mexico. She claims that cartel members kidnapped and assaulted her. They demanded that she and her husband take drugs to the US for them. They threatened to kill her if she did not comply. [11] MGS claims that her family went into hiding, but she was located, kidnapped, and assaulted by the CJNG. The Appellant fled to Canada with her family for protection in XXXX 2017, but her husband was returned to Mexico. [12] MGS also alleges that two men on a motorbike unsuccessfully tried to kidnap EMG XXXX 2017. ANALYSIS [13] My role is to look at all the evidence and decide if the RPD made the correct decision.1 [14] Sworn testimony is presumed to be true unless there are reasons to doubt its truthfulness. These reasons may include contradictions, inconsistencies, omissions and implausibilities.2 [15] The RPD found that the Appellants were not credible witnesses, on a balance of probabilities. The RPD decided that the Appellants were not credible because of it found inconsistencies, implausibilities, and omissions on the record. The RPD did not find that the documentary evidence supported the material aspects of the claim such that it could come to a positive determination absent credible testimony. [16] Since the Minor Associate Appellants' claims depended on the credibility of the adult Appellants, the RPD found that the lack of credibility of the three adult claimants negatively impacted the minor claimants' claims as well. [17] The RPD found that the lack of credibility extended to all aspects of the claim. [18] After an independent review, I find that the RPD was correct for the following reasons. The Appellants' BOC narrative does not mention CJNG [19] DGS testified that he feared members of Cartel Jalisco Nuevo Generacion (CJNG) because they tried to recruit him to traffic drugs. MGS's Basic of Claim (BOC) narrative does not mention the CJNG. It refers to a "powerful criminal organization".3 All the Appellants used the same BOC narrative for their claims. The RPD found that this omission undermined the Appellants' credibility. I agree. [20] The Appellants' Counsel argues that the RPD erred in this finding. Counsel submits that the RPD agreed that the family was being persecuted by the CJNG because it referred to DGS's testimony about the matter.4 Counsel argues that the RPD misstated the facts because MGS explained that she did not mention the CJNG because she was afraid. [21] The RPD did not err. The RPD was correct to observe that MGS's BOC narrative does not mention CJNG. Since this narrative was used for all the Appellants, it undermines their credibility. [22] MGS explained that she was afraid that she would suffer consequences if she named the CJNG as her agents of persecution. She said that she believed they could discover the details of her refugee claim because the entire country acts like a mafia. The RPD correctly considered MGS's testimony but did not find that she explained her omission.5 [23] I agree with the RPD's analysis. MGS has not explained why she did not mention the CJNG in her narrative. Her claim that the entire country acts like a mafia does not explain why she believed the CJNG would find out what she wrote in her BOC narrative. The identity of the Appellants' agents of persecution is a material detail. The Appellants were represented by Counsel, who would have been able to explain the privacy of a refugee process. In these circumstances I would expect MGS to have included this detail in her BOC narrative. This omission undermines the Appellants' credibility. It is not plausible that DGS continued to meet his agents of persecution for dinner [24] DGS testified that his agents of persecution approached him and would invite him to dinner. He said that he dined with these people on multiple occasions. He testified that they were evil people. The RPD did not find it credible that DGS continued to meet with the CJNG if he was afraid of them and considered them evil. [25] This is a plausibility finding even though the RPD did not explicitly frame it this way. That said, I find that this plausibility finding is correct. This is a clear case.6 DGS's behaviour is outside the realm of what could reasonably be expected and cannot be explained by cultural norms judged against Canadian standards.7 [26] The Appellants have not contested this finding. Like the RPD, I do not find it credible that DGS would continue to meet his alleged agents of persecution if he was as afraid of them as he described, on a balance of probabilities. DGS could not provide clear details about what the CJNG asked him to do [27] The RPD observed that DGS was unable to provide specific details about what the CJNG wanted him to do for them, including which border they wanted him to go to.8 DGS said that they wanted him to bring drugs to the border. [28] First, DGS said that the CJNG did not specify which border.9 When the RPD stated that the closest border to Mexico City is Laredo, Texas, DGS mentioned Tijuana.10 Then, DGS indicated that the CJNG did not specify a border.11 [29] The RPD noted that the border crossings are a significant distance from Mexico City. The RPD acknowledged that it did not expect DGS to be able to peer into the minds of the cartel members. However, the RPD did not find that DGS was able to provide a credible explanation for why the cartel would want him to do a job that was so far from his home. [30] The Appellants' Counsel argues that the RPD erred when it expected DGS to know this information. [31] The RPD did not expect DGS to be able to peer into the minds of the CJNG. Rather, the RPD expected DGS to provide a consistent and plausible account of what the CJNG asked him to do. [32] I agree with the RPD's assessment that the CJNG's request for DGS to transport drugs such a great distance is not logical or plausible. However, I find that the credibility problem is better characterized by the fact that DGS was unable to provide clear or consistent details about the cartel's demands, as the RPD noted.12 If DGS met with the CJNG as many times as he claims, and he was repeatedly threatened if he did not comply with their demands, then I would expect him to be clear about what those demands were. [33] In either case, like the RPD, I find that DGS's credibility is further undermined by the inconsistent and unspecific details about what the CJNG asked him to do. The support letters do not establish that DGS was held by his captors for a week and a half [34] The Appellants submitted support letters from their family and friends with their claims. The Appellant's Counsel argues that the RPD erred when it impugned the Appellants' credibility because of what the support letters did not say. [35] Counsel has mischaracterized the RPD's analysis and finding. [36] DGS testified that he was kidnapped and held by his captors for a week and a half. The Appellants' BOC narrative did not mention how long the cartel members held DGS. The RPD noted this omission. [37] Then the RPD turned to the Appellants' documentary evidence to determine whether there was alternative evidence to establish that DGS was held by his captors for as long as he claimed. The RPD did not find any such evidence. The RPD noted that none of the letters of support referenced the timelines of DGS's kidnapping. [38] This is the correct method of analysis. The RPD did not impugn DGS's credibility because of the letters. Rather, the RPD examined the entirety of the record to find documentary evidence to establish DGS's claim that he was held captive for a week and a half. [39] Also, I note that the RPD's credibility finding is based on several elements of DGS's claims regarding the timelines of his kidnapping and hospital stay.13 The RPD considered the documents alongside these other elements. This is correct. [40] In sum, the RPD did not err by examining the Appellants' documentary evidence. The inconsistent timeline of DGS's stay in the XXXX undermines his credibility [41] DGS testified that he went to the hospital on XXXX XXXX XXXX 2015 and stayed there for XXXX XXXX. The hospital record on file states that he was admitted on XXXX XXXX and released in XXXX. The RPD accepted that DGS was admitted to the hospital XXXX XXXX XXXX. However, on a balance of probabilities, the RPD did not find that it was related to his alleged abduction. I agree. [42] The Appellants' Counsel argues that DGS's stay in the hospital is not material to his claim. As such, Counsel submits that the RPD's credibility finding is made in error. Counsel points to the RPD's acceptance that DGS had XXXX on his XXXX to support this argument. [43] I disagree. There is a clear inconsistency on the record regarding the timeline of DGS's hospital visit. DGS was unable to explain this inconsistency. This detail is material to the claim because DGS was allegedly in the hospital because of serious injuries he sustained from his agents of persecution. These injuries were serious. The details of injuries from agents of persecution are central to a refugee claim. The RPD was correct to find that this inconsistency undermines DGS's credibility. [44] Moreover, the RPD did not err by believing that DGS had XXXX on his XXXX but finding insufficient evidence to link this XXXX to the CJNG. It is plausible that DGS had XXXX for a matter unrelated to his claim. The RPD was correct to find that the evidence on the record was not sufficient to establish a link, on the balance of probabilities, between the XXXX and the alleged kidnaping and beating by the CJNG. The attempted kidnapping of EMG is not related to the CJNG on a balance of probabilities [45] MGS claims that members of the CJNG tried to kidnap EMG. None of the Appellants were present at the time of the attempted kidnapping. A letter of support from a witness describes an attempted kidnapping that was interrupted by police.14 MGS testified that she made a police report but that it disappeared. She did not remember when she made the police report. MGS also did not mention the police report in her written narrative.15 [46] MGS also claimed that members of the CJNG told her they were responsible for the attempted kidnapping of EMG but that she did not remember to include this detail in her narrative because it was not pretty to remember the details and she blacked it out.16 [47] The RPD did not find this credible. The RPD did not accept that: a. MGS made a police report about the kidnapping attempt, b. MGS forgot when she made the police report, c. The report disappeared, d. MGS "blacked out" on the fact that the CJNG told her they were behind the kidnapping attempt on her son. [48] The RPD accepted XXXX letter of support at face value. It accepted that someone attempted to abduct EMG. However, the RPD did not find credible, trustworthy evidence to establish that the CJNG was behind the kidnapping. The RPD noted that kidnapping is a common occurrence in Mexico. The RPD found that the kidnapping attempt was not connected to the CJNG as the Appellants claimed, on a balance of probabilities. [49] The Appellants do not contest these findings. The RPD's findings are correct. Furthermore, I find that MGS's omission of this material information from her BOC narrative undermines her credibility. The RPD correctly considered the documentary evidence [50] The Appellants' Counsel argues that the RPD paid lip service to the sound documentary evidence on the record. Counsel did not provide any more specific details. [51] I do not find evidence that the RPD paid lip service to the documents. Rather, the RPD correctly and thoroughly analyzed the documentary evidence.17 [52] The RPD was correct to note that the documentary evidence on the record did not establish the Appellants' allegations that it found to be inconsistent. The RPD was correct to note that the letters provided generic information and do not specify how the authors of the letters came to know their information. It is correct for the RPD to consider the source and circumstance of the evidence on the record. The RPD did not ignore evidence [53] The Appellants' Counsel argues that the RPD ignored evidence that directly contradicts the conclusion that it reached. Counsel did not point to any specific pieces of evidence or findings. [54] I have reviewed the entirety of the record and do not find that the RPD ignored any evidence that directly contradicted its findings. In fact, I do not find any evidence that directly contradicts the RPD's findings. The RPD considered the evidence and found that it did not establish that DGS was abducted for a week and a half and tortured by the CJNG for refusing to cooperate with their drug smuggling scheme, on a balance of probabilities. This is not an error. Delay undermines the Appellants' credibility [55] DGS claims that he was beaten and hospitalized in XXXX 2015. He did not leave Mexico until two years later. DGS explained that he did not leave Mexico for two years because his stomach was still open after his surgery. The RPD did not find this plausible. [56] DGS arrived in Canada in XXXX 2017. He did not make a claim for refugee protection until XXXX 2018. His eTA expired in XXXX 2017. DGS explained that he did not make a claim because he was afraid and was told Mexican refugee claims were not successful. The RPD did not accept this explanation. [57] The Appellants do not contest the RPD's findings about DGS's delay in seeking refugee protection. I agree with this uncontested finding. I do not find that DGS sufficiently explained why he waited two years to leave Mexico nor why he waited for a year to claim refugee status in Canada. Like the RPD, I find that this negatively impacts DGS's credibility. Consistent elements of the Appellants' stories do not overcome the credibility concerns [58] I note that the Appellants recounted some elements of their story consistently. For example, MGS provided consistent details about her abduction and sexual assault. [59] However, on a balance of probabilities, I do not find that there is sufficient credible evidence to establish that this incident was connected to DGS's interactions with the CJNG as described. I also do not find that this consistency overcomes the other material inconsistencies and credibility issues on the record. [60] Moreover, it is established that even without disbelieving every part of a claimant's story, a general finding of a lack of credibility may extend to all relevant evidence emanating from the testimony.18 I find that this is the case for the Appellants. There is insufficient evidence to establish that the cartel is still looking for the Appellants [61] The RPD did not find that the Appellants established that the cartel was still looking for them, on a balance of probabilities. [62] At the hearing, the Appellants disclosed that the cartel sent GSR a threatening message. This was the first time that the Appellants had informed the RPD and their Counsel about this message. GSR explained that she did not disclose the message to Counsel because he already had all the evidence. She later apologized. [63] The RPD asked the Appellants to provide the message as late evidence. They did no do so. They provided unrelated evidence that the RPD rejected. The RPD drew a negative credibility inference. [64] I agree with the RPD's analysis and uncontested finding. The Appellants did not establish that the cartel is still looking for them in Mexico on a balance of probabilities. The omission of this alleged message from their documentary evidence also undermines their credibility. The RPD was correct to reject the post-hearing evidence [65] The RPD gave the Appellants extra time to submit post-hearing evidence. The evidence was supposed to establish the claim that the CJNG murdered MGS's XXXX and that the CJNG is still looking for them. The Appellants claimed they had this evidence. [66] The Appellants did not provide the evidence they claimed to have. Instead, the Appellants provided letters from family dated after the hearing and a newspaper article about a shooting that did not identify the victim. Since the Appellants did not submit the evidence they claimed to have, and the evidence they did submit did not establish that MGS's XXXX was murdered by the CJNG, the RPD rejected it and drew a negative inference. [67] The Appellant's Counsel argues that the RPD got the facts wrong.19 Counsel submits that the Appellants explained at the hearing that it was difficult to get evidence from some family members because they were afraid of the cartel. [68] I note that Counsel has not directly contested the RPD's rejection of the post-hearing submissions. Instead, Counsel points to the other evidence on the record to demonstrate that the RPD erred and misconstrued the facts. Counsel does not point to any specific evidence or explain what facts the RPD misconstrued. [69] In my view, the RPD correctly explained why it did not accept the post-hearing submissions. MGS told the RPD that she tried to get evidence about her XXXX's death, but no family wanted contact with her. However, MGS provided documents that post-date the hearing, which indicates that MGS did not request them until after the hearing. MGS did not explain to the RPD why her family was suddenly willing to provide her with letters if they were too scared to do so before her hearing. The Appellants have also not explained this with their appeal. [70] The RPD was correct to find that MGS was not credible when she told the RPD that she tried to obtain this evidence before the hearing. [71] The RPD found that the documents did not establish that her XXXX was murdered by the CJNG. I also note that none of the documents refer to the CJNG - rather, they reference a criminal organization. The RPD was correct to reject the documents. I also note that the Appellants have not submitted any new evidence with their Appeal. No evidence of bias [72] The Appellants' Counsel argues that the RPD Member was biased in its decision because it was unwilling to assess evidence in an unbiased manner. [73] An allegation of bias against a tribunal is a serious allegation. It must be supported by material evidence.20 [74] Counsel has not presented any material evidence to support this allegation. The RPD's credibility findings are correct and grounded in the evidence. The RPD's reasons are detailed and explicit. The RPD Member conducted a full and fair hearing. [75] After an independent review, I do not find any material evidence to demonstrate that the RPD Member was biased in its decision. CONCLUSION [76] The Appellants' claims collectively hinge on the allegation that members of the CJNG pressured DGS to traffic drugs and assaulted and threatened him when he refused. MGS and GSR claim that they were targeted by the same cartel because DGS fled Mexico. DGS did not credibly establish his allegations on a balance of probabilities. As such, the basis for the claims of the other Appellants are also not credible. [77] Furthermore, because of the numerous credibility issues on the record, I agree with the RPD's finding that the Appellants are not credible witnesses, on a balance of probabilities. MGS omitted key details from her narrative. GSR and MGS claimed to have evidence that they were unable to produce when they were provided an extension to do so after the hearing. [78] After an independent review, I find that the Appellants' allegations are, on a balance of probabilities, not credible. The presumption of truthfulness has been rebutted. I find that the Appellants have not credibly established that they face a serious possibility of persecution or a personal risk to life, or a risk of cruel and unusual treatment, or a danger of torture, upon return to Mexico. I find no error in the RPD's conclusion that the claim fails on the issue of credibility. [79] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Desiree Pachkowski Desiree Pachkowski January 4, 2021 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Maldonado v. Canada (MEI) (1994), 23 Imm LR (2d) 220. 3Exhibit RPD-1, RPD Record, BOC Narrative, at p.30. 4 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at p.6 at para.22. 5 Exhibit RPD-1, RPD Record, at p.7 at paras. 22 -23. 6 Valtchev v. Canada (Minister of Citizenship and Immigration), 2001 FCT 776 (CanLII), at para. 7. 7 Ibid. 8 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at p.10 at para. 56. 9 Exhibit RAD-1, RAD Record, Transcript of hearing before the RPD on November 1, 2019, at p.11 at line 35; Exhibit RPD-1, RPD Record, Audio recording of hearing before the RPD on November 1, 2019, at 00:26:35. 10 Exhibit RAD-1, RAD Record, Transcript of hearing before the RPD on November 1, 2019, at p.11 at line 45. 11 Ibid, at p. 12 at line 5. 12 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at p.10 at para. 56. 13 Ibid, at pp. 8 - 9, at paras. 31 - 46. 14 Exhibit RPD-1, RPD Record, Letter from XXX XXXX XXXXX, at pp. 331 - 333. 15 Exhibit RAD-1, RAD Record, Transcript of the hearing before the RPD on November 1, 2019, at pp. 21 - 22. 16 Ibid. 17 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pp. 12 - 14 at paras. 68 - 84. 18 Sheikh v. Canada (Minister of Employment and Immigration), 1990 CanLII 8017 (FCA), [1990] 3 FC 238, at para. 8. 19 Exhibit P-2, Appellant's Record, Memorandum of Appeal, at p. 179 at para 15. 20 Poczkodi v. Canada (Immigration, Refugees and Citizenship), 2017 FC 956 (CanLII), at paras. 50-51. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-02775 TC0-02776 / TC0-02777 / TC0-02778 TC0-02779 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français