MB9-19412

RAD File No. / No de dossier de la SAR : MB9-19412 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision July 14, 2020 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subject of the appeal Me Felipe Morales Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX you are a citizen of Mexico. You allege fearing your former spouse who, over time, became violent, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX1 [2] The Refugee Protection Division (RPD) concluded that you had been a victim of violence at the hands of your former spouse and that he threatened to kill you if you reported him for XXXX XXXX XXXX XXXX XXXX. That being said, it also determined that you had an internal flight alternative (IFA) in Mexico, either in Acapulco or Manzanillo, and therefore rejected your claim for refugee protection.2 [3] On appeal, you presented evidence, requested that an oral hearing be held and stated that the RPD erred in its analysis of your IFA.3 [4] Having analyzed the record, I conclude that the evidence presented on appeal is not admissible (I) and that there is no cause to hold a hearing (II). I also conclude that the RPD erred in its analysis of an IFA for you, and that there is reason to set aside its determination and substitute it today for a determination that allows your refugee protection claim (III). I. EVIDENCE PRESENTED ON APPEAL [5] You stated that you wanted to cite articles describing Acapulco and Manzanillo, Mexico as dangerous cities.4 [6] Based on my reading of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and relevant case law,5 I find that the evidence included in these articles are not admissible and here is why. [7] In your memorandum, I did not find a complete and detailed submission explaining how this evidence is consistent with the requirements of subsection 110(4) of the IRPA and connected to you. You have a duty to make such submissions. It is not for me to sift through this evidence to determine whether it meets the requirements of subsection 110(4). In any event, a quick read of the articles in question enabled me to ascertain that the facts therein took place before your claim for refugee protection was rejected. II. HEARING BEFORE THE RAD [8] In your memorandum, you requested a hearing on appeal, arguing that you were concerned that you did not have the opportunity to be heard and that the RPD had made its decision without allowing you to state your case.6 [9] The onus is on the RAD to determine whether the tests under subsection 110(6) of the IRPA have been met.7 One of the tests under this subsection is that evidence presented on appeal must be found to be admissible. However, I have concluded that the evidence presented on appeal is not admissible. Under the circumstances, no oral hearing should be held.8 III. ANALYSIS OF THE APPEAL [10] It is not the role of the Refugee Appeal Division (RAD) to conduct a de novo review of refugee protection claims, but instead to determine whether the RPD has in fact erred as alleged.9 I have conducted my own analysis of the record, notably by listening to the recording of the hearing before the RPD10 and taking into account the Chairperson's Guideline 4.11 I found that the correctness standard needed to be applied.12 [11] To establish an internal flight alternative (IFA), the RPD, like the RAD, must be persuaded on a balance of probabilities that there is no serious risk of persecution in the region concerned for the person claiming refugee protection and that the situation in that region is such that it is not unreasonable for the person to seek refuge there.13 The second prong of the IFA test is a flexible one that takes into account the particular situation of the claimant and the particular country involved. [12] The two prongs of the test for assessing an IFA were raised by the RPD in its decision.14 Once potential IFAs are identified, the onus is on the refugee protection claimant to prove that they are not viable. [13] It should be noted that according to your testimony, which the RPD found to be credible, you were a victim of violence at the hands of your former spouse and he threatened to kill you if you reported the fact that he belongs to a criminal group.15 Your testimony on this matter was very emotional and I want to note that the RPD was very courteous and caring with you at all times, notably by giving you a break when you began to sob.16 [14] That being said, the RPD concluded that you did have an internal flight alternative in Acapulco or Manzanillo, Mexico. According to its analysisXXXX XXXX XXXX XXXX has no influence there, your former spouse does not have a leadership position in this cartel and has no friends in the police force.17 Given your personal characteristics, the RPD considered it reasonable for you to move there.18 [15] In your memorandum, you argue that the RPD erred in concluding that you have an IFA by settling in Acapulco or Manzanillo, Mexico, on the grounds that the XXXX XXXX has no presence in those cities. According to your assessment, those cities are dangerous, especially for a woman. You also argue that the RPD erred in concluding that your former spouse does not have the ability to track you down in either of those cities.19 [16] It is true that during your testimony you stated that you have no knowledge of the activities your former spouse XXXX XXXX XXXX XXXX XXXX XXXX or even who he was working with exactly. You explained that your former spouse was quite secretive about these things.20 [17] That being said, according to the documentary evidence, XXXX XXXX XXXX is one of the most powerful gangs in Mexico, even though it has lost some of its territory to its rivals, and its structure has been decimated by government measures and gang wars. However, this does not stop XXXX XXXX from conducting its activities through fragmented cells that do not communicate with one another and that often adopt new names. Even though the XXXX XXXX is known for conducting its activities in specific areas of Mexico, it is still able to track a person outside of those areas. According to the documentary evidence, a significant debt or personal revenge can motivate a gang to track someone outside its region and it can call on corrupt police officers to obtain information to help find the people they are looking for.21 To my understanding of this documentary evidence, we cannot ignore the fluid nature of criminal organizations or the existence of collusion between them and the Mexican police.22 [18] Violence against women is considered an epidemic that, in Mexico, cuts across social, economic, cultural and age lines. Although there are laws against such violence, some believe that they are not effectively enforced. There are organizations that are required to help any person who has suffered this type of violence and any failure to meet that requirement can be brought before the national human rights commission. [19] According to the documentary evidence, in most cases, women in Mexico do not report domestic violence. Some fear reprisals from their partner. Some fear being mistreated by government organizations that blame the victim for the abuse they suffer. Others fear the corruption within the security forces. According to the Alianza por los Derechos de las Mujeres del Estado de México, cases of violence against women are not properly investigated, adjudicated or sanctioned, leading some to state that in Mexico, femicide is committed with impunity.23 [20] During the hearing, you explained that after being struck by your former spouse and having learned of his membership in a criminal group, you were so scared that you did not file any report, you remained silent.24 You also responded to the RPD's questions about the work you did in Mexico.25 According to my analysis of your record, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX26 and I gather you earned a modest income. [21] You also submitted to the RPD a letter signed by a lawyer in Mexico stating that you were advised to avoid confronting your former spouse by filing a complaint against him.27 [22] Chairperson Guidelines 4 indicates that when considering whether it is objectively unreasonable for the claimant not to have sought the protection of the state, the decision-maker should consider, among other relevant factors, the social, cultural, religious, and economic context in which the claimant finds herself.28 Taking into account all of the evidence, I conclude that it was not unreasonable for you not to have filed a complaint against your former spouse. [23] The Chairperson's Guideline 4 also indicates that in determining the reasonableness of a woman's recourse to an internal flight alternative, decision-makers should consider the ability of women, because of their gender, to travel safely to the IFA and to stay there without facing undue hardship.29 Taking into account your own profile, that of your former spouse and the general context that reigns in Mexico regarding violence against women, I conclude that even by moving to another region of Mexico, you would still fear persecution. [24] Accordingly, I conclude that the RPD erred in its analysis of an IFA for you, and that there is reason to set aside its decision to reject your claim for refugee protection. CONCLUSION [25] For these reasons I set aside the RPD's decision and substitute the determination that should have been made, namely, that you are a refugee within the meaning of section 96 of the IRPA. [26] Your appeal is allowed. (Signed) Alain Bissonnette Me Alain Bissonnette July 14, 2020 Date IRB translation Original language: French 1 Your Basis of Claim Form (BOC Form) is reproduced on pages 12 to 23 and the documents you filed as evidence are reproduced on pages 65 to 107 of the electronic version of the Refugee Protection Division (RPD) record. 2 RPD Reasons and Decision, August 5, 2019, pages 5 to 11 of the electronic version of the RPD record. 3 Your memorandum, October 1, 2019, pages 35 to 38 of the electronic version of the appeal record. 4 Your statement and the articles in question are reproduced on pages 10 to 23 of the electronic version of the appeal record. 5 Canada (Citizenship and Immigration) v. Singh, No. A-512-14, de Montigny, Gauthier and Nadon, March 29, 2016; 2016 FCA 96, paragraphs 38 to 51. Tiodunmo v. Canada (Minister of Citizenship and Immigration), No. IMM-1227-19, Lafrenière, November 22, 2019; 2019 FC 1489, paragraphs 15 to 18. Pajarillo v. Canada (Minister of Citizenship and Immigration), No. IMM-3740-19, Lafrenière, December 20, 2019; 2019 FC 1654, paragraphs 18 and 19. 6 Your memorandum, supra endnote 3, page 38. 7 Horvath v. Canada (Minister of Citizenship and Immigration), No. IMM-3425-17, Mosley, February 8, 2018; 2018 FC 147, paragraph 18. 8 Abdi v. Canada (Minister of Citizenship and Immigration), No. IMM-566-18, Boswell, January 16, 2019; 2019 FC 54, paragraph 29. 9 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 10 Recording of RPD hearing held on July 18, 2019, 00:01 to 01:56:27, or 1 second to 1 hour, 56 minutes and 27 seconds. 11 Immigration and Refugee Board (IRB), Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective date November 13, 1993. 12 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 13 Leon v. Canada (Minister of Citizenship and Immigration), No. IMM-2218-19, McHaffie, March 26, 2019; 2019 FC 428, paragraph 9. 14 RPD Reasons and Decision, supra endnote 2, paragraphs 16, 29, 30 and 35. 15 Ibid., paragraphs 9 to 14. 16 Recording of the hearing, 35:30 to 47:20. 17 RPD Reasons and Decision, supra endnote 2, paragraphs 15 to 29. 18 Ibid., paragraphs 30 to 35. 19 Your memorandum, supra endnote 3, pages 36 and 37. 20 Recording of the hearing, 50:15 to 53:00. 21 IRB, National Documentation Package (NDP) on Mexico, March 31, 2020, Tab 7.15, Research Directorate, IRB, 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, Response to Information Request MEX106302.E, 21 pages. 22 Madrigal Ramirez v. Canada (Minister of Citizenship and Immigration), No. IMM-500-18, Zinn, September 28, 2018; 2018 FC 967, paragraph 13. 23 IRB, NDP, Tab 5.10, Research Directorate, IRB, Mexico: Domestic violence, including legislation; protection and support services offered to victims by the state and civil society, including Mexico City (2015-July 2017), August 11, 2017, Response to Information Request MEX105952.E, 21 pages. 24 Recording of the hearing, 09:01 to 15:00. 25 Ibid., 15:30 to 18:30. 26 According to the information provided on your immigration form IMM 5669, which is reproduced on pages 52 to 55 of the electronic version of the RPD record. 27 This letter (P-8) and its translation are reproduced on pages 105 to 107 of the electronic version of the RPD record. 28 Chairperson's Guideline 4, supra endnote 11, under C. Evidentiary Issues, item 2. 29 Ibid., item 4. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-19412 RAD.25.02 (April 4, 2019) 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 (April 4, 2019) Disponible en français