MB9-26570

RAD File No. / No de dossier de la SAR : MB9-26570 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision December 21, 2020 Date de la décision Panel Me Charles Gauthier Tribunal Counsel for the person who is the subject of the appeal N/A 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 XXXX (the appellant) is a citizen of Mexico. He is appealing the decision of the Refugee Protection Division (RPD) which rejected his claim for refugee protection because it found that there was no prospective risk for the appellant. The extortion attempt was against the appellant's parents and they were the ones who filed a complaint with the authorities: [translation] "...the incidents experienced by the [appellant's] family are instances of generalized crime. They did not occur in the context of a pattern targeting the refugee protection claimant." Summary of relevant facts [2] The appellant arrived in Canada on XXXX XXXX XXXX 2018. He claimed refugee protection on XXXX XXXX XXXX 2018. His claim is based on the fact that his parents were the subject of attempted extortion around XXXX XXXX XXXX 2018, when his mother received an anonymous telephone call demanding money that, according to the crooks, one of her sons allegedly owed. On XXXX XXXX XXXX 2018, some individuals knocked on door of the home of the appellant and his parents. The appellant, who was there, did not answer the door and pretended there was no one home. The agents of risk allegedly made threats via text message sent to the cell phone of the appellant's mother, stating that if the money demanded was not paid, one of her children would be done away with. Those residing in the family home, namely, the appellant's parents, the appellant and his cousin, took refuge in Mexico City that same night and tried to file their complaint with the city authorities. They were told the complaint had to be filed in their city of origin (Martinez de la Torre, Veracruz). On XXXX XXXX XXXX the appellant's mother filed a complaint with the municipal police in Martinez de la Torre, for which an investigation order1 was issued that relates the events in the appellant's account. That same day, a protection measures order2 was issued to protect the appellant's mother and the residents of the home. As of the day of the hearing, the appellant's parents were still living in the same house. Summary of the position of the Refugee Protection Division and the appellant [3] The determinative issue for the RPD was whether the appellant faced a prospective risk to his life or to a risk of cruel and unusual treatment or punishment that is not faced "generally by other individuals...." The RPD concluded that the appellant did not face a prospective risk to his life or to a risk of cruel and unusual treatment or punishment because the events established do not demonstrate that it is the appellant who would be targeted. The RPD concluded that the late declaration of homosexuality was unrelated to the events that form the basis of the appellant's claim. It noted that the appellant did not assert that he had been persecuted in Mexico because of his sexual orientation. [4] The appellant submits that the RPD erred in concluding that he had failed to establish a serious possibility of persecution if he were to return to Mexico. He alleges that he fled from those who wanted to kill him and that it is normal that his parents no longer receive threats because he was the subject of the extortion. His return to Mexico would make the situation worse because the cartel never gives up on its prey. He also alleges that the RPD could not state that there was an internal flight alternative (IFA) in Merida, Yucatán, as a result of his homosexuality because he would be in more danger there as a number of homosexuals are being killed in that city. At the start of submissions, he noted the documents provided to establish his identity. Determinative issue for the Refugee Appeal Division [5] The determinative issue for the Refugee Appeal Division (RAD) is the lack of prospective risk. The appellant failed to establish, on a balance of probabilities, that he would be subjected personally to a danger of torture, or to a risk to his life or to a risk of cruel and unusual treatment or punishment not faced generally by other individuals in or from that country, if he were to return to Mexico. DETERMINATION [6] I dismiss the appeal. The RPD's decision is correct. The appellant is not a Convention refugee or a person in need of protection. The evidence submitted by the appellant shows that it was his parents, particularly his mother, who were the subject of the extortion attempt. Although the crooks threatened to go after one of the appellant's mother's children, there is no evidence that it is the appellant who would be targeted. With regard to the late declaration of homosexuality, no connection was established between the appellant's sexual orientation and the events recounted. The cities established as IFAs by the RPD are not determinative in this case, as the decision is not based on this aspect. NEW EVIDENCE The new evidence presented by the appellant is rejected. [7] Before the RAD, the appellant submits the fact that he is homosexual as new evidence. In accordance with the law,3 I may accept only evidence that: i. arose after the RPD's decision; ii. was not reasonably available at the time of the decision; iii. the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was rendered. [8] If the evidence meets one or more of these requirements, I must determine whether the evidence is new, credible and relevant before I can accept it.4 The appellant's sexual orientation was disclosed to the RPD by the appellant when the written submissions were provided on XXXX XXXX XXXX 2019, before the RPD's decision. It is not new evidence and has no nexus to the basis of the refugee protection claim. It cannot be accepted. ANALYSIS Standard of review [9] My role is to review all the evidence and determine whether the RPD's decision is correct,5 based on the grounds raised by the appellant.6 Analytical framework [10] The record presented by the appellant relates to the threats that were allegedly made against the appellant's mother with a view to extorting money from her. Given that this was not a threat made in connection with a Convention ground, the record will be analyzed under subsection 97(1) of the Immigration and Refugee Protection Act.7 Prospective risk [11] The RPD did not err. The appellant claims that the extortion attempt against his mother was targeting him. He testified that his parents have remained in the same house where they lived with him and his cousin. The threats were made to his mother's telephone number. He testified that the day after the initial call to his mother demanding money, some individuals showed up at the parents' house when the appellant was home alone. Text messages were sent to his mother's device following the crooks' unsuccessful attempt. That same evening, the family fled to Mexico City. There, the appellant's mother tried to file a complaint with the city authorities. Given that the authorities indicated that the family had to file their complaint in the municipality where the extortion demands were made, the family returned to Martinez de la Torre and filed the complaint8 there on XXXX XXXX XXXX 2018. [12] In it, the appellant's mother states, on XXXX XXXX XXXX 2018, that since the events of XXXX XXXXandXXXX XXXX, 2018, the entire family has changed telephone numbers and she does not know if the telephone calls continued. The appellant testified that the last incident of threats was on XXXX XXXX XXXX 2018, when the appellant's mother received a text message stating that if she did not hand over the money, members of the family would pay. There is a contradiction between the appellant's testimony and the statement made on XXXX XXXX because the telephone numbers had already been changed. This undermines the credibility of the appellant's account. [13] When asked about the possibility of returning to Mexico, the appellant testified at minute 53 of the recording that the organization was no longer angry with his family. When questioned further about his personal risk, he alleged that the cartel members are after him because he is the one who filed a complaint. However, that is not what the documents show. It was the appellant's mother who received the telephone calls and threats via text message. It was the appellant's mother who filed a complaint9 and who obtained a protection order.10 [14] In his testimony, the appellant stated that, in addition to the fact that his parents still live in Martinez de la Torre and had not been bothered since XXXX 2018, he also has a brother and sister who still live in the same city. They have not been bothered by the agents of risk either. In this regard, the appellant testified that it was because they do not live in the same house. This is in contrast to the threat made against the mother that one of her children would be targeted. Lastly, the appellant testified that his parents did not comply with the agents of risk's demands and that his brother told him he did not owe any money to anyone. [15] The RPD noted that the documentary evidence on crime and extortion in Mexico is endemic. The events described by the appellant are part of the generalized crime, with his parents being the victims of an extortion attempt. However, the document on which the RPD relied11 was removed from the National Documentation Package (NDP). Nevertheless, the documentary evidence12 shows that drug cartels have diversified their crime activities, turning to extortion, kidnapping, car theft, oil theft, human smuggling, etc. In addition, the same documentary evidence13 shows that 93% of extortions were conducted by telephone and that demands were only met in 6.8% of the cases. This establishes what the appellant's parents experienced. [16] In light of the foregoing, the appellant has not established, on a balance of probabilities, that he would be subjected personally to a danger of torture, or to a risk to his life or to a risk of cruel and unusual treatment or punishment if he were to return to Mexico. The RPD's conclusion is correct. The appellant's homosexuality [17] The RPD gave the appellant, who was not represented before the RPD, the opportunity to put forward his written submissions. The Member referred the appellant to the issues of personalized risk and the IFA in two possible destinations, namely, Mexico City or the city of Merida, in Yucatán. The appellant raised the issue of his homosexuality during his submissions, noting that the city of Merida cannot be considered as an IFA because it is backward and homosexuals are being killed in this city because of their sexual orientation. He did not contest the destination of Mexico City. The RPD noted that the issue of the appellant's gender was not raised in the reasons for the appellant's claim. I add that the issue of an IFA is not determinative in this appeal as the lack of prospective risk is the determinative issue. Therefore, the appellant's argument cannot stand. CONCLUSION [18] I dismiss the appeal and confirm the determination of the RPD that the appellant is not a Convention refugee or a person in need of protection. (signed) Me Charles Gauthier Me Charles Gauthier December 21, 2020 Date IRB translation Original language: French 1 SPR-1, Refugee Protection Division (RPD) record, Document 4, investigation order of June 19, 2018. 2 SPR-1, RPD record, Document 4, order to implement protection measures, June 19, 2018. 3 Subsection 110(4) of the Immigration and Refugee Protection Act. 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, FC 385. 5 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 6 Subparagraph 3(3)(g)(ii) of the Refugee Appeal Division Rules. 7 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 8 Supra, endnote 1. 9 Supra, endnote 1. 10 Supra, endnote 2. 11 SPR-1, RPD record, Document 3, National Documentation Package (NDP) on Mexico, March 29, 2019, Tab 7.16. 12 Ibid., RPD record, Document 3, NDP on Mexico, Tab 7.2. 13 Ibid., RPD record, Document 3, NDP on Mexico, Tab 1.5. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-26570 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français