MC0-08066

RAD File No. / No de dossier de la SAR : MC0-08066 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, QC Appel instruit / entendu à Date of decision May 13, 2021 Date de la décision Panel Me Tammy Tremblay Tribunal Counsel for the person who is the subject of the appeal Angelica Pantiru 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 allow the appeal. [2] The appellant, XXXX XXXX XXXX XXXX, is a citizen of Mexico. The appellant suspects that a cartel (Los Zetas) is responsible for the disappearance of her brother and sister-in-law in XXXX 2016. The appellant's brother had told her about the cartels' attempts to infiltrate the company where he worked. The appellant's brother allegedly wanted to report the cartels to the police and had not been seen since. The appellant states that she fears being killed by the cartels for speaking to the media about the disappearance of her brother and her sister-in-law. [3] The Refugee Protection Division (RPD) found that the appellant established that her brother and sister-in-law have been missing since XXXX 2016 and that she and her family actively tried to find them. However, it does not believe that the appellant was subsequently threatened because of her desire to find them, because of omissions and contradictions in her testimony on this. [4] In her memorandum, the appellant mainly notes the following: - The RPD did not analyze her testimony in its entirety. - The RPD did not consider the fact that the appellant also feared the corrupt authorities. - The RPD's questions were not clear and caused confusion. - The contradictions regarding the threatening calls should not make the panel doubt her testimony. - The RPD did not mention in the decision that the appellant testified that she had received [translation] "forty-five calls from various telephone numbers and that during the calls she was sworn at and an aggressive voice was used, pretending to torture someone." - The RPD erred in concluding that she failed to mentioned the XXXX XXXX, 2018, incident in her testimony. - The appellant did not contradict herself on her whereabouts when she received the XXXX XXXX, 2018, call. - The RPD should have given probative value to the article she submitted that established that the company where her brother worked continues to be the target of organized crime attacks. - In the assessment of prospective risk, the RPD erred by failing to consider the documentary evidence and not mentioning the documentary evidence establishing that the Los Zetas cartel is collaborating with members of the government and has the capacity to find the appellant anywhere in Mexico. [5] The determinative issue for the Refugee Appeal Division (RAD) is the appellant's credibility. ANALYSIS [6] My role is to consider all the evidence and establish whether the RPD's decision is correct.1 The appellant is credible [7] I found that it was not necessary to review each of the RPD's findings because they are not all determinative, but overall, I find that the RPD's negative findings on the appellant's credibility are incorrect. [8] According to the RPD, the appellant's testimony contradicted the threatening calls. She allegedly states in her BOC Form that during the calls [translation] "the criminals told us that they knew about our reports, that we were on their organization's radar," while during her testimony, she allegedly stated several times that the people on the calls said nothing and that she merely heard background noises. [9] The appellant alleges that the RPD should have analyzed her testimony in its entirety and that the contradiction regarding the threatening calls should not make the RAD doubt her testimony for two reasons: (1) during the hearing, the appellant indicated that the public ministry checked her telephone to trace the number but was unsuccessful because the criminals were using a blocked line; (2) the RPD did not consider the fact that the appellant also feared the corrupt authorities. [10] With respect, these arguments do not explain the contradiction raised by the RPD. However, during the hearing, the appellant explained that although she was not verbally threatened during the calls she received, her mother received a call where threats were uttered against her and the other members of her family involved in the campaign for justice for her brother and sister-in-law. I am of the opinion that this is a valid explanation for the apparent contradiction between her written account and her testimony during the hearing. Furthermore, in the section of her written account referring to these incidents, the appellant states [translation] "we" and does not indicate that she herself received verbal threats. [11] Similarly, I am of the opinion that the appellant did not [translation] "fail" to mention the February 1, 2018, incident when responding to an RPD question regarding the last threatening call she received. The RPD's question concerned a specific incident, namely the last threatening call received, and it would be unreasonable to expect the appellant to respond by mentioning facts that are not related. [12] I am of the opinion that the appellant rendered a testimony that was spontaneous, detailed and without apparent contradictions. The appellant responded to all the questions and gave valid explanations to the problems noted by the RPD in her testimony. She also disclosed supporting documents that I consider relevant and reliable in relation to the disappearance of her brother and sister-in-law and the threats she allegedly received afterwards. [13] I am of the opinion that the appellant established, on a balance of probabilities, that her brother and sister-in-law disappeared in XXXX 2016 and that she was threatened for denouncing their disappearance in the media. The appellant is personally subjected to a risk to her life in Mexico [14] The appellant has established that she is personally subjected to a risk to her life to which other Mexican nationals are not generally subjected under subsection 97(1) of the IRPA. [15] The appellant was personally and specifically targeted by death threats. The appellant was found and threatened. These threats to her life are different in their nature and intensity from the risk to which other Mexican nationals are generally subjected. I find that it is more likely than not that the appellant would be personally subjected to a risk to her life to which other Mexican foreign nationals would generally not be subjected. The appellant has no viable internal flight alternative in Mexico [16] The RPD asked the appellant at the start of the hearing whether she had an internal flight alternative (IFA), without drawing any conclusions in that regard. [17] The legal test for assessing and IFA has two prongs.2 [18] In terms of the first part of the test, I must be convinced that the appellant is not personally subjected to a risk to her life, or to a danger of torture or to a risk of cruel and unusual treatment or punishment in a Mexican region. [19] Under the second prong of the test, the IFA conditions must be such that it is not unreasonable, considering all the circumstances, for the appellant to take refuge there. [20] For the following reasons, I am of the opinion that the first prong of the IFA legal test is not met. Motivation to find the appellant [21] In my opinion, on a balance of probabilities, the Los Zetas cartel has the motivation to find the appellant, as several pieces of evidence show. In particular, the cartel managed to locate the appellant when she relocated to Veracruz to escape from the cartel. Capacity to find the appellant [22] In my opinion, on a balance of probabilities, the Los Zetas cartel has the means to find the appellant throughout Mexico. [23] The documents on the country conditions in the Immigration and Refugee Board of Canada's National Documentation Package on Mexico establish that there is generalized impunity for criminal activities and that cartels are often colluding with corrupt police and government authorities. The objective evidence establishes that, although the Los Zetas cartel is weakened and more fragmented than before, ruthless violence remains, and it occupies "...a patchwork of territory across the country" and has infiltrated police forces.3 [24] In a decision involving the analysis of an IFA in the context where the agent of harm was Los Zetas, the Federal Court found that it was unreasonable to presume that Los Zetas would not venture into a territory outside its control or to assume that it would be unable to track down people in other parts of Mexico.4 [25] I am of the opinion that the appellant's testimony, the evidence submitted and the documentary evidence establish that her agents of harm have the means and motivation to find her throughout Mexico. [26] Therefore, there is a risk that the appellant would be personally targeted or subjected to danger, a risk to her life or a risk of cruel and unusual treatment or punishment upon a return to Mexico. The appellant does not have access to adequate state protection in Mexico [27] Although states are presumed capable of protecting their citizens, I am of the opinion that the appellant does not have access to adequate state protection in Mexico. [28] During the hearing, the appellant testified that she could not obtain protection from authorities in Mexico, in part because criminals are an integral part of the government, and because the public ministry told her to [translation] "stay away" and, especially, did not respond to her complaint of threats against her. [29] As indicated above, the objective documentary evidence confirms that the state authorities are often in collusion with the cartels and, in particular, Los Zetas. [30] I am of the opinion that the appellant's testimony and the documentary evidence are sufficient to rebut the presumption of state protection. CONCLUSION [31] The appeal is allowed. I substitute my own determination that the appellant is a person in need of protection. (signed) Tammy Tremblay Me Tammy Tremblay May 13, 2021 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1172, [1994] 1 FC 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.). 3 SAR-1, National Documentation Package on Mexico (April 30, 2021), Tab 7.15 : Mexico: Drug cartels, including Los Zetas, the Gulf cartel (Cartel del Golfo), La Familia Michoacana, and the Beltrán Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017-August 2019, August 15, 2019. MEX106302.E, pages 6-7. 4 Ramirez v. Canada (Minsiter of Citizenship and Immigration), 2018 FC 967, paragraph 14. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-08066 RAD.25.02 (Janvier 2020) Available in English 3 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