VB9-04978

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 File Nos. / Nos de dossier de la SAR : VB9-04978 ; VB9-04979 ; VB9-04980 ; VB9-04981 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subjects of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered at Montreal, Quebec Appel instruit à Date of decision December 2, 2019 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the persons who are the subjects of the appeal Me Abraham J. (CAL) Garza 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 AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX XXXX (the Principal Appellant/PA), his spouse XXXX XXXX XXXX, and their two minor children XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are citizens of Mexico. They appeal a decision of the Refugee Protection Division (RPD) rendered on May 21, 2019, denying their claims for refugee protection. [2] The Appellants fear corrupt members of the police and the Los Zetas cartel after the PA refused to XXXX XXXX XXXX that was needed to further their illegal operations. On appeal to the Refugee Appeal Division (RAD), the Appellants submit that the RPD erred in dismissing their claim on the basis that they can avail themselves of an Internal Flight Alternative (IFA) in Tijuana. [3] After considering the Appellants' submissions and all of the evidence, I dismiss the appeal, concluding that the RPD did not err in finding that the Appellants benefit from an IFA. It follows that they are not persons in need of protection pursuant to s. 97(1)(b) of the IRPA. II. BACKGROUND AND OVERVIEW [4] The Appellants lived in Tuxtla, Gutierrez in the state of Chiapas where the PA worked for a XXXX company called XXXX XXXX as a XXXX XXXX of XXXX XXXX. Since 2015, he developed a positive relationship with his client XXXX from Veracruz. [5] On XXXX XXXX XXXX 2016, XXXX asked the PA to engage in a large transaction worth over XXXX XXXX pesos. The transaction involved an unknown company who wanted to pay cash for the XXXX XXXX and did not want to process the transaction through the credit department. In return for his collaboration, the PA would be awarded bonus instalments of XXXX XXXX XXXX pesos. [6] Upon further questioning, the PA understood from XXXX that the XXXX was being purchased by a cartel who needed it for their ships, trains and trucks used to transport drugs. XXXX informed the PA that he should feel as ease with the transaction given that government authorities including the police, are protecting the cartel. [7] When the PA declined the offer, XXXX threatened the PA and his family with harm. XXXX emphasized that they had already investigated the PA's family. [8] The PA discussed the matter with his cousin XXXX, a XXXX in Veracruz who XXXX XXXX related to cartels and corruption. XXXX advised the Appellants to flee for their safety. In the meantime, he would try to find a solution to their predicament. [9] The Appellants relocated to Durango where they lived in hiding with the PA's mother. Meanwhile, in XXXX 2017, their home in Tuxtla was robbed and vandalized and a message was left behind indicating, "XXXX XXXX XXXX XXXX XXXX XXXX." Following this incident, XXXX advised the PA to leave Mexico. [10] On XXXX XXXX, 2017, the PA left Mexico and travelled to Canada. XXXX XXXX later, XXXX was shot in Veracruz by unknown assailants. The associate Appellants travelled to Canada on XXXX XXXX XXXX 2017, after XXXX was advised that the cartel was looking for the them in Durango. The Appellants claimed refugee protection in February 2018. [11] The RPD found that the Appellants credibly established that: - the Los Zetas attempted to purchase XXXX XXXX from the PA in XXXX 2016, and he refused; - After the PA refused the transaction, XXXX threatened that the cartel would harm the PA and his family; - The Los Zetas cartel commits violent crimes and other types of crime in Mexico and elsewhere. The Los Zetas targeted the Appellants because the PA is perceived to have defied the Los Zetas after he refused to sell the XXXX XXXX to the cartel to further their illegal operations. - The Appellants established that their fear is personalized since the Appellants were targeted after the PA refused to supply the XXXX XXXX. [12] This being said, the RPD rejected the Appellants' refugee claims on the basis that they can avail themselves of an IFA in Tijuana. III. DETERMINATIVE ISSUE [13] The determinative issue on appeal is whether the RPD erred in the assessment of the IFA. IV. SCOPE OF THE RAD APPEAL [14] The RAD reviews decisions on a standard of correctness after conducting an independent assessment of the evidence before it.1 Deference may be required when the RPD enjoys a meaningful advantage in the assessment of the credibility of oral evidence.2 I have applied the correctness standard in the present case. V. ANALYSIS [15] After conducting my own analysis of the record, I conclude that the RPD did not err in finding that the Appellants can avail themselves of an IFA in Tijuana, Mexico. My reasons follow. The IFA test [16] The onus is on the Appellants to demonstrate that it is unreasonable for them to seek refuge in a different part of their country before resorting to international protection.3 [17] This assessment is based on a two-prong test. First, the RPD must be satisfied on a balance of probabilities that there is no serious possibility that they will be persecuted or at risk of harm in the part of the country in which it finds that the IFA exists. Secondly, the conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, for the Appellants to seek refuge there.4 First prong of the test: No serious possibility of persecution or risk of harm in the part of the country in which an IFA exists [18] As noted above, the RPD found that the PA and his family were personally targeted by the Los Zetas after the PA refused to sell them XXXX XXXX to further their illegal operation. As such, the RPD considered whether the Appellants could safely relocate to Tijuana. [19] After examining the evidence, the RPD determined that there is no serious possibility of the Appellants being persecuted or being at risk of harm if they relocate to Tijuana. In reaching this finding, the RPD first considered the capacity of the Los Zetas cartel to pursue the Appellants in Mexico. In this regard, the RPD noted the following: - The Appellants established that they are personally targeted by the Los Zetas cartel following the PA's refusal to sell them XXXX XXXX. - The available objective evidence reveals that the Los Zetas cartel is a criminal organization that commits violent crime and other types of crime in Mexico. This cartel has a significant presence in several Mexican states on the Gulf side of the country and they have extended their reach to Ciudad, Juarez and Chihuahua and some Pacific states. - While objective evidence points to the fact that the reach and area of control of cartels are in flux, a map from the Congressional Research Service Report indicates that the Los Zetas are not currently in control of Tijuana.5 - This being said, the RPD accepted that the Los Zetas have the capacity to find people throughout Mexico, if they so wish. Most notably, documentary evidence reveals that members of organized crime have persisted in their attempt to infiltrate local governments to ensure their own impunity and that official corruption (by police, military and other state officials sometimes in coordination with criminal organizations) remains a problem. Moreover, the documentary evidence reveals that cartels have taken steps to harm journalists, politicians and public officials who oppose their interest.6 [20] Next, the RPD considered the motivation of the Los Zetas to pursue the Appellants throughout Mexico, and specifically Tijuana. In this regard, the RPD found that cartels will only expend efforts to seek people throughout the country if the targets are sufficiently important. The RPD found that the Appellants do not fit the profile of people sought by the Los Zetas cartel or other cartels outside their local area. In reaching this finding, the RPD noted the following: - The Los Zetas in Vera Cruz were angry about the PA's refusal to sell welding equipment and this resulted in financial loss to the cartel. The fact that they vandalized the Appellants' home in Tuxtla is not surprising given that XXXX knew that the Appellants lived in Tuxtla. - The Appellants remained in Mexico for several months after the PA was threatened by XXXX. More specifically, the PA stayed a further period of XXXX months before travelling to Canada. His spouse and children left Mexico a year later (XXXX 2017). During this period, nothing untoward happened to them. - While it is true that the Appellants were living in hiding in Durango during this period, they were actually living with the PA's mother the entire time. - The RPD found it quite significant that the Appellants were not tracked down at the home of the PA's mother. If the Los Zetas cartel was motivated to find the Appellants, they could have traced them to the home of the PA's mother in Durango. - The RPD accepted the Appellants evidence that the Los Zetas cartel can access National Government databases which allows them to locate people in Mexico. If they had wanted to trace the Appellants, they could have found the PA's mother through the databases. The PA's mother was not living in hiding and her address would have been registered in Durango for the purpose of her voter's card and other identity documents. - While the Appellants state that XXXX personal assistant told them in XXXX 2017 that he heard that people are looking for the Appellants in Durango, the RPD found this information vague and unreliable. The PA speculated that this information could have come from XXXX police contacts. - Although the PA testified that his mother reported seeing strange people in the vicinity of her home, the RPD found that this information is also speculative in nature. There could be many reasons to explain why strange people were observed near her home, especially given that nobody ever presented at the home of the PA's mother to inquire about the Appellants whereabouts. - The Appellants have not provided evidence that the Los Zetas cartel and the police will know if they return to Mexico and live in Tijuana. - While the PA believes that his XXXX cousin XXXX was shot by the Los Zetas because they are angry that the PA did not sell them XXXX XXXX, the RPD found this aspect of the evidence does not rise above the level of speculation. The RPD noted that XXXX is a XXXX who XXXX XXXX XXXX XXXX XXXX. XXXX is a dangerous occupation in Mexico. Moreover, the news article submitted to corroborate the shooting of XXXX does not indicate that the Los Zetas were involved in the crime.7 - The RPD also noted that Mexico is a large country with 123 million people. Tijuana is a large city with over 2 million people. According to the PA, Tijuana is around 30 hours by car from Tuxtla and Veracruz. The RPD found that the Los Zetas will not, on a balance of probabilities, expend such efforts to locate the Appellants, especially since they are not high-value targets. - The RPD also considered the female Appellant's statement that she fears being the victim of crime if she relocates to Tijuana by reason of her gender alone. While mindful of the Gender Guidelines, the RPD noted that the crime rate is high in Mexico and the risk of crime is a generalized one-similar to the risk faced by other people in Tijuana. - While the Appellants assert that they are not safe anywhere in Mexico, the proposed IFAs are not under the influence of the Los Zetas cartel. [21] All things considered, the RPD concluded that the Appellants failed to establish on a balance of probabilities that the Los Zetas cartel have the interest or motivation to find them in Tijuana or that they would be subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment in the identified IFA. [22] On appeal, Counsel argues that the RPD misapplied the IFA test; failed to provide adequate reasons to explain the decision to reject the claim and adopted a selective review of the objective evidence. Counsel also faults the RPD for engaging in speculation and asserts that the decision shows "bias and prejudice damaging an institution such as the IRB".8 [23] Counsel further submits that the agents of harm include the police and the Los Zetas cartel. The RPD erred by failing to consider available objective evidence9 clearly establishing that the police force and cartel have the capacity to track people elsewhere in Mexico given that the authorities have access to databases which allow them to track people that they are searching for. Finally, Counsel submits that the RPD erred in characterizing the female Appellant's risk in Tijuana as a result of her gender as generalized in nature. [24] I find that Counsel's submissions cannot succeed. [25] First, there is no merit in Counsel's assertion that the RPD misconstrued the IFA test. To be clear, the RPD has clearly and correctly set out the applicable IFA test with reference to relevant jurisprudence.10 [26] Second, while Counsel faults the Panel member for failing to provide adequate reasons to explain her finding that the Appellants have a viable IFA in Tijuana, this is a bald assertion, unsupported by the evidence. As noted above, the RPD set out several reasons to explain its finding that the Appellants did not demonstrate that they face persecution or harm if they relocate to Tijuana. The RPD accepted the credibility of the facts underpinning the claim and accepted that the objective evidence points to the fact that the Los Zetas cartel is a powerful and violent cartel who have the ability to access information and track people through the collusion of government authorities, including the police. [27] Having accepted that this situation exists, the RPD then correctly turned its mind to the motivation of the cartel to seek out the Appellants elsewhere in Mexico, such as in Tijuana. In assessing the motivation of the cartel to pursue the Appellants, the RPD considered available information concerning the conditions in Mexico, and engaged with the facts underpinning the claim before reaching the conclude that the Los Zetas will not, on a balance of probabilities, expend efforts to pursue the Appellants to Tijuana, especially since they are not high-value targets. I endorse the findings of the RPD which are well supported by the evidence. [28] Next, Counsel argues that the RPD erred by engaging in speculation which demonstrates bias in reaching the decision to reject the claim. I find that this is a serious allegation which is once again unsupported by material evidence in the present case. In this regard, I find the remarks of Justice Zinn in the Ramos Aguilar case11 instructive: "It should be recognized that counsel are Officers of the Court. Allegations of bias against a Member of the RPD, or any administrative quasi-judicial or judicial decision-maker should only be advanced in the clearest of cases. These circumstances do not exist in this matter. Counsel should be guided by the Federal Court of Appeal's admonition in Arthur v Canada (Attorney General), 2001 FCA 223 (CanLII), at para 8, as follows: [8]... An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation. It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidence demonstrating conduct that derogates from the standard..."12 [29] Finally, I cannot agree with Counsel's assertion that the RPD erred by mischaracterizing the female Appellant's risk of crime in Tijuana as a result of her gender as generalized in nature. The RPD correctly noted that there is a high rate of crime in Tijuana and other parts of Mexico. However, there is no evidence to suggest that the female Appellant's risk of crime is greater or different than the risk faced by other people in Tijuana. While mindful of the Gender Guidelines and cognizant that women constitute part of a social group, I find that the Appellants did not demonstrate that women face a serious possibility of violence or crime in Tijuana or anywhere in Mexico by reason of their gender alone. [30] In sum, I find that the RPD did not err in finding that on a balance of probabilities, the Appellants would not be personally subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment from the Los Zetas if they relocate to Tijuana, Mexico. Second prong: the proposed IFA is not objectively unreasonable or unduly harsh for the Appellants [31] I begin my analysis by noting that case law sets out a very high threshold when determining whether a proposed IFA is unreasonable or unduly harsh. In Thirunavukkarasu,13 the Federal Court of Appeal states the following: "[If] there is a safe haven for claimants in their own country, where they would be free of persecution, they are expected to avail themselves of it unless they can show that it is objectively unreasonable for them to do so." [32] As noted by the Federal Court of Appeal, this is not a matter of the Appellants' "convenience or the attractiveness of the IFA, but whether one should be expected to make do in that location, before travelling halfway around the world to seek a safe haven in another country."14 [33] The reasonableness of the IFA will depend on the facts of the case. [34] The RPD found that it is not objectively unreasonable for the Appellants to avail themselves of an IFA in Tijuana. The RPD noted that the Appellants have secondary and some post-secondary education. The PA worked in XXXX for many years. His wife worked as a XXXX XXXX. They would likely find work and shelter in Tijuana. They did not raise any other concerns to suggest that it would be objectively unreasonable for them to relocate to Tijuana. [35] The Appellants have not challenged this finding on appeal. I see no basis to disturb the RPD's finding which is well supported by the evidence. On the whole, I find that the Appellants failed to prove, based on their particular circumstances, that it is unreasonable for them to live in the proposed IFA. Therefore, I find that the second prong of the IFA test has not been satisfied. [36] Once it is determined that an IFA exists, this is sufficient to dispose of the claim.15 VI. REMEDY [37] For all these reasons, I dismiss the appeal. "Patricia O'Connor" Me Patricia O'Connor December 2, 2019 Date PO/lp 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, paras 78, 103. 2 Ibid, paras 58, 59 and 70. 3 Momodu v. Canada (Citizenship and Immigration), 2015 FC 1365, para 6; Abdalghader v. Canada (Citizenship and Immigration), 2015 FC 581, para 22. 4 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No 1172, [1994] 1 F.C. 589 (F.C.A); Rasaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1256, [1992] 1 F.C. 706, 140 N.R. 138 (F.C.A). 5 National Documentation Package (NDP) for Mexico, 29 March 2019, Tab 7.2: Mexico: Organized Crime and Drug Trafficking Organizations. United States. Congressional Research Service. June S. Beittel. 3 July 2018. R41576. 6 Tab 7.11: KRE in Mexico. KRE Global Monitor. December 2016-March 2017. Liberty Speciality Markets; red24. 24 March 2017. 7 Exhibit 4, news article. 8 Memorandum of Appeal, para 5. 9 Tab 2.1: Mexico. Country Reports on Human Rights Practices for 2018. United States. Department of State. 13 March 2019. 10 RPD decision, pp. 2-3. 11 Ramos Aguilar v Canada (Citizenship and Immigration) 2019 FC 431. 12 Ibid, para 47. 13 Thirunavukkarasu, supra note 4. 14 Ibid. 15 Kanagaratnam v. Minister of Employment and Immigration, (1996) 36 Imm. L.R. (2d) 180 (F.C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (2014.09.11) Disponible en français 10 RAD File Nos. / No de dossier de la SAR :VB9-04978; VB9-04979; VB9-04980; VB9-04981