MB9-00826

RAD File No. / No de dossier de la SAR : MB9-00826 MB9-00827 / MB9-00828 / MB9-00829 MB9-00830 / MB9-00831 / MB9-00832 MB9-00833 / MB9-00834 / MB9-00835 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 XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision February 28, 2020 Date de la décision Panel Me Charles Gauthier Tribunal Counsel for the persons who are the subject of the appeal Me Ana Mercedes Henriquez Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I dismiss the appeal. XXXX XXXX XXXX XXXX (the principal appellant) and XXXX XXXX XXXX XXXX (hereafter "the father"), XXXX XXXX XXXX (hereafter "the mother"), XXXX XXXX XXXX (hereafter "XXXX"), XXXX XXXX XXXX XXXX (hereafter "XXXX"), XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the associate appellants), all Mexican citizens, are appealing against a decision of the Refugee Protection Division (RPD) dated December 5, 2018, which rejected their claims. [2] For better understanding, the following table explains how the individuals are related to one another and when they arrived in Canada. XXXX XXXX XXXX XXXX (principal appellant) - XXXX XXXX XXXX (spouse) XXXX XXXX XXXX XXXX XXXX(child) XXXX XXXX XXXX XXXX XXXX(child) (Left Mexico for Canada on July 28, 2017) (Sister of principal appellant) - XXXX XXXX XXXX (Left Mexico on June 2, 2017) (Sister of principal appellant) XXXX XXXX XXXX XXXX - XXXX XXXX XXXX (child) - XXXX XXXX XXXX XXXX (child) (Left Mexico on July 12, 2017) (Parents of principal appellant) - XXXX XXXX XXXX XXXX (Father of principal appellant) - XXXX XXXX XXXX (Mother of principal appellant) (Left Mexico on June 2, 2017) Summary of relevant facts [3] The appellants allege that they fear the former mayor of Zamora in the state of Michoacan, and those assigned to protect him, because the principal appellant's sister, XXXX, was present when a murder was committed at the mayor's home while she was providing care to the mayor's wife. No information has emerged regarding the circumstances of this homicide. One by one, they were threatened for failing to disclose XXXX whereabouts. Summary of the appellants' position [4] The appellants are challenging the RPD's decision, claiming the following: a. Breach of natural justice caused by the errors of prior counsel and his failure to submit documents and evidence that would have proven the appellants' allegations; this also applies to the appellants' next two criticisms; b. Credibility: the RPD took into account only the evidence supporting its decision and disregarded any evidence proving the contrary, it failed to take into account the uncontested statements that the appellants have no contact with their family members who have remained in Mexico, the appellants should be given the benefit of the doubt, and the RPD did not base its findings on true discrepancies that would support the appellants' lack of credibility; c. Internal flight alternative (IFA): the RPD failed to review all of the documentary and testimonial evidence, it failed to take into account the appellants' personal circumstances and ask questions about these circumstances, it is not unreasonable for the agent of persecution to be able to threaten the lives of the appellants once he was no longer the mayor of the city, the RPD should not have criticized the appellants for failing to conduct research on the homicide or the agent of persecution, the principal appellant's father has no higher education and it would be impossible for the appellants to practise their trade-strawberry farming-in the proposed areas. Summary of the Refugee Protection Division's position [5] The appellants' credibility was called into question with regard to the principal appellant's filing of a report with the authorities on July 27, 2017, and the RPD did not believe the appellants' allegations that they had no information about the siblings who remained in the area of Zamora in the state of Michoacan between the date of their departure from Mexico and the hearing. The RPD concluded that an IFA existed in the city of Merida, in the state of Yucatan, and in Guaymas, in the state of Sonora, as the appellants failed to establish on a balance of probabilities a fear or risk within the meaning of section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA) in one of those places in the event of their return to Mexico, and to establish on a balance of probabilities that the potential IFA locations are objectively unreasonable, in all the circumstances, including those particular to the claimant. The determinative issue for the RPD was the IFA. Determinative issue [6] The determinative issue before the Refugee Appeal Division (RAD) is the IFA in Merida or Guaymas. Determination [7] I dismiss the appeal. The RPD's decision is correct in that the appellants are neither Convention refugees nor persons in need of protection. Background [8] XXXX was in the home of the mayor of Zamora, in the state of Michoacan, Mexico, on April 29, 2017, when two shots rang out from the upper floor of the house while she was giving a massage to the mayor's wife. Stepping out into the corridor, she allegedly saw the mayor yelling, [translation] "I don't want him here; get him out of here." The mayor allegedly saw her in the corridor. She gathered her things to leave via her usual exit through the garage. There she reportedly saw [translation] "the mayor's security staff hauling a body and lifting it into the back of a pick-up truck." When she was spotted, the men allegedly asked her to leave another way, via the main entrance, through which she was escorted by the gardener. [9] XXXX, who lived with her parents, remained at home in hiding until Tuesday, May 2, 2017, when she allegedly went out to see her Tuesday clients, the first Monday of May being a statutory holiday in Mexico. While she was out, armed men appeared at XXXX parents' house, looking for her. The principal appellant's father allegedly determined that these men were with the judicial police. They reportedly pushed the principal appellant's father and went through the house trying to find her. When the father began asking questions, they supposedly ordered him not to move or speak, or things would go badly for him. When they failed to find her, they left. The principal appellant's parents gathered their own belongings and XXXX, allegedly warned her not to return to the house, and left Zamora to take refuge in Guadalajara, in the state of Jalisco, about 160 km away, where they remained until their departure on XXXX XXXX XXXX 2017. [10] Three days after May 2, XXXX was instructed to check the state of her parents' house. Informed by the neighbours that judicial police officers had broken down the doors, she allegedly saw a paper that had been nailed to the table, reading, [translation] "You're going to die, bitch!" XXXX was then instructed to purchase three airplane tickets to Canada for XXXX and her parents. The tickets were purchased for XXXX XXXX XXXX 2017. XXXX then suggested that XXXX prepare her papers for departure just in case and advise the principal appellant to do likewise. [11] The principal appellant was accosted by individuals at 5:30 a.m. on June 20, 2017, on his way to work. They asked him where XXXX was. He was told to provide the information within 24 hours or he and his family would be attacked, whereupon they gave him the names of his wife and children. The same day, the principal appellant rented a house in Las Majadas, about 20 km from Zamora, in a rural area, which XXXX describes as a part of Zamora. He allegedly remained there with his family until their departure for Canada on XXXX XXXX, 2017. [12] XXXX was reportedly visited by the judicial police at her workplace on July 1, 2017, while she was working away from the office. She was allegedly informed of the visit by a colleague. Returning to her home that evening, she supposedly discovered that her house had been ransacked. Frightened, she fled to the principal appellant's home in Las Majadas. She bought the airplane tickets for Canada on July 4, 2017, and began taking steps to obtain a travel permit for her children's father. She and her children left for Canada on XXXX XXXX XXXX 2017. [13] At the time of the hearing, on October 30, 2018, the agent of persecution, Jose Carlos Lugo Godinez, was no longer the mayor of Zamora. ANALYSIS Standard of review [14] The role of the RAD is to review the RPD's decisions applying the standard of correctness. It carries out its own analysis of the record to determine whether, as submitted by the appellants, the RPD erred. New evidence and admissibility [15] In support of their appeal, the appellants have filed 17 documents and seek to have them admitted as new evidence. The filing of this evidence is based on an allegation of incompetence of counsel who represented the appellants before the RPD. The practice notice can be found at page 56 of the appellants' memorandum, and the letter acknowledging receipt of the memorandum of appeal by the office of prior counsel, dated February 26, 2019, is found at page 227 of the memorandum. At the time of writing this decision, no response to the appellants' allegations had been provided by their prior counsel, except for the response letter of January 30, 2019, contained in the documents filed as A-16, written to the attention of the appellants' lawyer and stating that the principal appellant had been directly advised as to the authenticity of document A-4. [16] In accordance with the IRPA,1 I can only admit evidence that: a. has arisen since the RPD rendered its decision; b. was not reasonably available at the time of the decision; c. the person could not reasonably have been expected in the circumstances to have presented to the RPD, before the decision was rendered. [17] If the evidence satisfies one or more of these requirements, I must decide whether it is new, credible and relevant before admitting it.2 [18] The evidence in question is the following: a. A-1: Principal appellant's sworn statement in which he waives solicitor-client privilege with respect to his former lawyer, XXXX XXXX, accompanied by the practice notice regarding the allegations against prior counsel. This document could not be produced before the rejection of the claim. It is new, credible and relevant. It is admitted because of the allegation of incompetence. b. A-2: Principal appellant's sworn statement regarding the representation by his counsel. This document could not have been produced before the rejection of the claim. It is new, credible and relevant. It is admitted because of the allegation of incompetence. c. A-3: Sworn statement of associate appellant XXXX XXXX XXXX regarding the representation by her prior counsel. This document could not be produced before the rejection of the claim. It is new, credible and relevant. It is admitted because of the allegation of incompetence. d. A-4: Police report of June 27, 2017, filed by the principal appellant. The appellants' exhibit list indicates, however, that this document is dated July 27, 2017. Although this document should have been produced before the claim was rejected, it is admitted for the purpose of analyzing the allegation of incompetence, as it is closely connected to documents A-1 to A-3. e. A-5: Photographs of strawberry production from June 2012. These photographs predate the rejection of the claim, were available and could reasonably have been expected to have been presented at the time of the claim. Furthermore, this evidence was not challenged before the RPD, rendering the photographs irrelevant to the appeal. They are therefore inadmissible as new evidence. f. A-6: Diploma from the XXXX XXXX XXXX XXXX given to associate appellant XXXX XXXX XXXX on September 13, 2005. This document predates the rejection of the claim, was available and could reasonably have been expected to have been presented at the time of the claim. It is neither new to the appellants' claim nor relevant, as XXXX qualifications were not challenged before the RPD. It is therefore inadmissible as new evidence. g. A-7: Receipts for weekly rent paid by XXXX XXXX XXXX from May 2, 2017, to June 2, 2017, in a bundle. This document predates the rejection of the claim, was available and could reasonably have been expected to have been presented at the time of the claim. It is neither relevant nor new to the appellants' claim, nor was it challenged before the RPD. It is therefore inadmissible as new evidence. h. A-8: Rental contract between the principal appellant and XXXX XXXX XXXX XXXX for an indeterminate period for the house in Las Majadas, San Isidoro #13, starting June 20, 2017. This document predates the rejection of the claim, was available and could reasonably have been expected to have been presented at the time of the claim. It is neither relevant nor new to the appellants' claim, nor was it challenged before the RPD. It is therefore inadmissible as new evidence. i. A-9: Short biography of Dr. Jose Carlos Lugo Godinez, dated September 14, 2012. There is no indication of the age of the document. The document is being filed in response to the RPD's conclusion that the appellants had little information about the agent of persecution. This document is inadmissible because it is not new and it could have been presented to the RPD before the claim was rejected. As per Eshetie v. M.C.I.:3 [33] . . . A RAD appeal is not a second chance to submit evidence to answer weaknesses identified by the RPD (Abdullahi v. Canada (Citizenship and Immigration), 2016 FC 260 at para 15): [15] In other words, responding to an inadequacy identified by the RPD in a party's case cannot be a legitimate foundation for the party to claim that had she known about the deficiency she could have presented better evidence that was always in existence from persons that could have been called, in this case from her cousin. This would make the RPD process a monumental waste of time, which is surely not Parliament's intention in providing appeal rights. It is therefore inadmissible as new evidence. j. A-10: Electronic news article dated August 12, 2017, [translation] "Régidors Reprimand Zamora's Municipal Council Chair in their Report to Government." This article is about a meeting of the Zamora city council on the subject of infrastructure. This document predates the rejection of the claim and is neither new nor relevant to the case and the appellants' story of persecution, risk and threats. It is therefore inadmissible. k. A-11: National Institute of Statistics and Geography, [translation] "No Complaint, 90% of Crimes Committed in Mexico." This document is undated and deals with statistics for the 2010-2011 period. It is neither new nor relevant to the case. It is inadmissible. l. A-12: [translation] "Mexico, the 'Peaceful' Country with the Greatest Number of Disappearances." January 3, 2018. This document predates the rejection of their claim and is neither new nor relevant to the case, referring instead to the generalized risk in Mexico. It is inadmissible as new evidence. m. A-13: Electronic news articles in a bundle: (a) [translation] "Five Bodies Found in a Mass Grave in Nayarit." (November 1, 2017); (b) [translation] "You Won't Believe What These Police Officers Are Doing" (undated, no details); (c) [translation] "Denuncia Zamora. Demonstration and Work Stoppage of Zamora Municipal Police, Who Seek a Hearing With a Representative of the Government or the SSPE" (September 28, 2018). These documents predate the rejection of their claim and are neither new nor relevant to the case, referring instead to the generalized risk in Mexico. They are inadmissible as new evidence. n. A-14: News articles relating to strawberry production in the state of Michoacan: (a) [translation] "Michoacan, the Country's Top Strawberry-Producing State" (August 12, 2018); (b) [translation] "Made in Mexico. Michoacan, a 'Berry' Large Producer." (November 3, 2017); (c) [translation] "Michoacan Represents 75% of the Country's Strawberry Harvest" (April 18, 2017). All of these documents were printed on January 28, 2019. A-15: Documentation on agricultural production in the states of Sonora and Yucatan, as of December 31, 2017, printed on January 28, 2019. The facts reported in these documents predate the rejection of the appellants' claim, and they could have produced them before their claim was rejected, as they had 13 days following the hearing of October 30, 2018, to raise their arguments, including those relating to the IFA and the proposed cities. They are inadmissible as new evidence. o. A-16: Correspondence exchanged between the appellants' counsel and the appellants' prior counsel between January 4 and January 30, 2019. This document could not have been produced before the claim was rejected and is admitted because of the allegation of incompetence. p. A-17: Request to the Immigration and Refugee Board of Canada for the complete record with letter of acknowledgment of receipt of the memorandum of appeal by the office of Felipe Morales, dated February 26, 2019. This document could not have been produced before the claim was rejected and is admitted because of the allegation of incompetence. [19] The documents admitted will retain the numbering attributed to them by the appellants, as the appellants make references to them in their memorandum. Documents A-5 to A-15 will therefore be listed as [translation] "omitted" in the RAD's list of exhibits. Oral hearing before the Refugee Appeal Division [20] When new evidence is admitted before the RAD, it decides under subsection 110(6) of the IRPA whether an oral hearing may be held. Such a hearing would address only the new evidence and is not to be used as new opportunity for the appellants to present evidence and arguments about the record as a whole, including evidence considered inadmissible pursuant to subsection 110(4) of the IRPA. [21] The documents filed, aside from document A-4, are not central to the decision with respect to the appeal, for reasons that will be more fully explained in the decision. Only document A-4 remains to be analyzed under subsection 110(6) of the IRPA. This document could raise a serious credibility issue if the RPD's decision had turned on whether or not a report to the local authorities had been filed. But this is not the case. Although the RPD did state that producing or not producing the police report in A-4 could be relevant to the credibility of the appellants (claimants), the degree of evidence required for the two prongs of the IFA test did not require an analysis of the appellants' credibility with respect to whether or not the report was produced, in this case. The document is not central to the decision and would not justify allowing or rejecting the claim for refugee protection. As the three criteria of subsection 110(6) are not met and the sworn statement produced as A-2 covers the issues that could, arguably, have been raised with respect to this document, there is no need for a hearing. Breaches committed by prior counsel equivalent to breaches of procedural fairness [22] The appellants allege that their prior counsel committed errors and omissions that were fatal to their claim for refugee protection. Among other things, they criticize their counsel for having decided not to produce the document that appears in the RAD record as A-4 and for having failed to produce the documents establishing their work and the electronic news articles that were not admitted to the RAD record. I disagree with this argument. [23] First, the principles applicable to representation by counsel were developed in G.D.B. v. Her Majesty the Queen:4 [26] The approach to an ineffectiveness claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per O'Connor J. The reasons contain a performance component and a prejudice component. For an appeal to succeed, it must be established, first, that counsel's acts or omissions constituted incompetence and second, that a miscarriage of justice resulted. [Emphasis added.] [27] Incompetence is determined by a reasonableness standard. The analysis proceeds upon a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. The onus is on the appellant to establish the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The wisdom of hindsight has no place in this assessment. [Emphasis added.] . . . [29] In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel's performance or professional conduct. The latter is left to the profession's self-governing body. [Emphasis added.] [24] More recently, in Rendon Segovia et al. v. The Minister of Citizenship and Immigration,5 the Federal Court set out the criteria that must be demonstrated for the incompetence of counsel to amount to a breach of procedural fairness. The appellants must establish that each of the following elements of a tripartite test is met: a. Prior counsel's acts or omissions constituted incompetence. b. A miscarriage of justice resulted in the sense that, but for the alleged conduct, the result would have been different. c. The representative was given an opportunity to respond. [25] With respect to the last element, the appellants demonstrated that prior counsel received the correspondence from their new counsel and the full appeal record on February 26, 2019, as shown by the acknowledgement of receipt attached to document A-17, at page 227 of the memorandum. In the case of both the RPD record and the RAD record, no response whatsoever from counsel was produced following the receipt of the memorandum. However, in a letter dated January 30, 2019, included in the document admitted as A-16, at page 221 of the memorandum, the appellants' prior counsel, referring to the document produced as A-4, states the following: [translation] ". . . moreover, we must inform the Board of our reasons for not filing the documents in question as evidence, in particular the police report that, according to Mr. XXXX, is misdated. Please take notice that we advised Mr. XXXX directly on the authenticity of the document." [Emphasis added.] [26] The first and second criteria must be analyzed together, as they are interrelated. The appellants allege in exhibits A-2 and A-3 that they gave several documents to their prior counsel, who filed some of them before the hearing but opted not to file others. To establish the alleged incompetence, the appellants must prove that counsel acted incompentently in choosing or neglecting to produce the documents that had been brought to him by the appellants, that this faulty conduct resulted in a miscarriage of justice and that, but for the alleged conduct, the result would have been different. A very high threshold will have to be met for the panel to be able to accept this argument. It has not been met here, for the following reasons. [27] An analysis of the record shows that the forms, including the immigration forms, correctly state the employment of each of the appellants (A-5 and A-6). No corroborating evidence was requested on these points, and the occupation of each appellant in Mexico was admitted by the RPD. The same is true for documents A-7 and A-8 with respect to the rental of apartments or a house to allow them to leave their residence. What is proven by these exhibits was not questioned by the RPD. Perhaps it would have been more prudent to produce them, but the absence of these documents had no impact on the RPD's decision, and so there was no miscarriage of justice, as the result would not have been different with respect to these two points. [28] The electronic news articles have no relevance as to what the appellants were required to prove. They have been described above in the section entitled "New evidence and admissibility." The appellants tried to introduce them as new evidence in the RAD record. Even if they had met the first requirement of subsection 110(4) of the IRPA, assuming that they could not reasonably have been presented before the rejection, they would not have passed the newness, credibility and relevance tests described in paragraph 7 of this decision. As mentioned above, exhibits A-10 to A-13 establish nothing in relation to the appellants' allegations of risk, persecution and threats. Not only are these articles unconnected to the allegations, but no error can be imputed to prior counsel for having opted not to produce them. There is no miscarriage of justice resulting from this choice, and the outcome would not have been different if they had been filed in the RPD record. [29] Exhibits A-14 and A-15 are not exhibits that were given by the appellants to their prior counsel. A reading of the documents indicates that they were printed on January 28, 2019, and in all likelihood are the result of research performed by or for the appellants' lawyer. The appellants cannot possibly fault their prior counsel on this point. The remaining document is the one filed as A-4. The principal appellant confirms in his sworn statement filed as A-2 that the document was in fact prepared on July 27, 2017 [emphasis added] despite the handwritten annotation of June 27, 2017 [emphasis added]. All of the references, whether they appear in the appellants' list of exhibits or the submissions in the memorandum of appeal, refer to the police report as that of July 27, 2017. The sole explanation provided is that there was simply a clerical error with respect to the date. The entire argument against prior counsel with respect to this document is based on the date alone, and the fact that prior counsel had refused to produce the document for that reason only. According to the principal appellant, his prior counsel [translation] "verified the document and told me that it would be prejudicial to our case, that we must not file the police report."6 [30] I disagree with the position that a mere clerical error could have constituted the sole problem with the document. First, the document is dated June 27, 2017, and refers in its content to events that occurred on July 1, 2017. Second, the document has no public ministry of investigation letterhead, it does not identify the individual who received the report or that individual's title, and the date is not indicated right on the document. The document does not refer to any identity document presented by the principal appelant when he filed his report, it provides the address of his previous residence as the location where he may be served, and it is not signed by the principal appellant. [31] However, the National Documentation Package (NDP) produced in the RPD record, in document 9.6, refers to the conditions for filing a police report, which include signing it. This was the reference document that was current in the NDP when prior counsel decided not to produce the document. Third, document A-16, at page 221, contains a statement from prior counsel informing current counsel that the principal appellant had been advised not to produce the document in question because its authenticity was doubtful. When this is considered together with the defects in the document's preparation, it is difficult to find fault with prior counsel's advice to his client not to file the document. [32] Fourth, the principal appellant's sworn statement contains an assertion that I find very troubling. The principal appellant admits at paragraph 42 that he knowingly lied to the RPD about not having the police report with him, so as not to prejudice his claim for refugee protection, knowing that the document was in his counsel's possession. This statement, combined with the allegations in the document made for the purpose of embellishing the story, such as [translation] "our parents had to leave their home because of the constant threats they were receiving," undermines the credibility of the story of persecution, risk and threat. Ultimately, in the IFA analysis, the existence of the police report A-4 had no impact on the decision. [33] I conclude that the police report has no probative value, as it merely relates the principal appellant's story, and that what the associate appellants told him was only done, according to the principal appellant's testimony, to leave a record of what had happened, more than a month after the events took place. Even assuming that it is valid, which is highly doubtful, it was made the day before the departure for Canada, according to the principal appellant's testimony. In the circumstances, the report may have been filed for the purposes of the claim for refugee protection. [34] The appellants' other complaints about the services of their prior counsel have no impact on the RPD's decision and do not need to be analyzed closely for the purposes of this appeal. The object of these complaints is rather, as described by the Supreme Court of Canada,7 "to grade counsel's performance or professional conduct." [35] The appellants argue that [translation] "the negligence and erroneous information from the claimants' prior counsel did not allow the panel to analyze all the evidence and thereby undermined the credibility of the claimants." I disagree with this argument. Even after an analysis of the documents that they wanted to enter into evidence, the RPD's decision did not ultimately turn on the appellants' credibility. It turned on what the appellants had to prove with respect to both prongs of the IFA test, including what was happening with the siblings who had remained in the Zamora area. That is the sole aspect of the decision that has any bearing whatsoever on the appellants' credibility. Credibility [36] The appellants criticize the RPD for having undermined their credibility by failing to take into account all the evidence. With respect, it is not the RPD that has undermined their credibility, but rather their own answers and the whole of the evidence, and the RPD draws its conclusions from this evidence. [37] Having reviewed the evidence admitted by the RPD in support of the appellants' claim, the appellants criticize the RPD for having relied in its analysis on mere speculation and for not having taken into account the appellants' personal circumstances or the explanations provided at the hearing. I disagree. The RPD accepted as fact several of the appellants' pieces of evidence. In fact, there were only two aspects of the appellants' allegations that the RPD did not accept. [38] The first aspect involves only the police report accepted as A-4. The RPD did not believe the principal appellant's story that he had filed a complaint with the Mexican authorities before his departure and concluded that the appellants had tried to mislead the panel by embellishing their story. Without the report, the RPD's decision was correct at first glance. Now that the report has been obtained, it is clear that the document was available, but its probative value supports the RPD's conclusion that the appellants were trying to embellish their story. The document's probative value already having been analyzed, and its authenticity also having been raised by both the RPD and prior counsel, the RPD's decision cannot be upheld on the basis of the document's absence, but it certainly can be upheld on the grounds that the appellants' credibility is undermined by the fact that the document was prepared for the purposes of the claim. However, this is not sufficient to change the outcome of the claim for refugee protection, as the RPD's decision did not turn on credibility. [39] The second aspect not accepted by the RPD was that the credibility of the appellants was undermined with respect to the circumstances of the siblings still living in Mexico, in the Zamora area, in the state of Michoacan. The appellants argue that the conclusions drawn by the RPD with respect to the siblings are merely speculative and that the RPD's reasons for drawing an adverse credibility finding were not explained. They are insistent on this point, adding, [translation] "It is not unreasonable to believe that the claimants are no longer in contact with their extended family given that they fled the country to protect themselves, got rid of their means of communication (cellphones) and have no social media presence in their own names, facts not contradicted by the Panel." I disagree. [40] The appellants stated at the hearing that the other siblings were not made aware of their departure for Canada or of their reasons for leaving. They also stated that they had not contacted the family members they had left behind in Mexico since their departure, about a year and a half ago. When questioned about the siblings still living in Mexico, as the forms were practically silent on this point, the appellants explained that they had not included their brothers and sisters in the Basis of Claim Form (BOC Form) because this had not been asked of them. The RPD rejected these answers, characterizing them as unreasonable, and declared that the appellants had not been frank about these family members. The RPD noted that the first six to arrive (see paragraph 2) were represented by counsel when their BOC Forms were prepared and that the question asked in the form was clear. [41] The RPD learned from the questioning at the hearing that many siblings had stayed behind in Mexico, including several in the Zamora area. It is also notable that in the principal appellant's father's BOC Form, his mother is listed as a member of the family, his father being deceased. The RPD noted, however, that the brothers and sisters of the principal appellant's father had not been mentioned in his BOC Form, which is inaccurate. This is an insufficient basis for allowing the appeal, as this point is not determinative. Nevertheless, following the appellants' logic, it makes sense to have left Mexico without telling anyone about the destination or the reasons for the rushed departures to avoid placing the others in danger. The RPD held instead that it did not believe [translation] "that the claimants would have kept their siblings in the dark about the danger the latter were reasonably facing in the circumstances or that they were unable-without putting anybody at risk-to find any information about their siblings' circumstances." I would add that it is difficult to believe that a 57-year-old man (the principal appellant's father) would not, upon his departure, let his 86-year-old mother know that he was leaving with his family or give her any sign of life during the year and a half between his departure and the hearing. The RPD's conclusion on this point is correct. Internal flight alternative First prong-fear of persecution or risk of harm [42] The appellants criticize the RPD for failing to take into account all of the testimonial and documentary evidence and failing to analyze the personal circumstances of the claimants in light of their age and work experience in determining the IFA. I disagree with these statements, for the following reasons. [43] First, the RPD did take into account all the evidence before it. This includes all the immigration forms, identity documents, BOC Forms and the written accounts included in them, and finally the oral testimony delivered at the hearing. It drew the relevant conclusions from the evidence and provided reasons based on the evidence relevant to the claim and what the appellants were required to prove. The onus is on the appellants to demonstrate that there is no IFA. They must establish this on a balance of probabilities, once sufficient evidence has been demonstrated. The RPD proposed two areas to the appellants. The Merida area in the Yucatan was suggested. This is one of the safest regions in Mexico, with the lowest crime rate. The Guaymas area in the state of Sonora was also proposed, as the principal appellant's father has a brother living in that region. The latter stated at the hearing that Guaymas is located 1,800 km from Zamora. Given that the agent of persecution is local, namely, the former mayor of Zamora and the municipal police in his employ, the proposed areas should not be problematic given the incident experienced by Giuliana, and, secondarily, by her immediate family. [44] The first prong must therefore be analyzed from the angle of the agent of persecution, and whether he has an interest in following the claimant to the proposed IFA and his capacity to locate the claimant. Once this has been considered, it is necessary to take into account the claimant's personal circumstances and the circumstances of people in the proposed IFA. [45] According to the evidence, the agent of persecution is the former mayor of Zamora, Michoacan. This is a municipal government entity, so its reach is regional. The evidence does not show on a balance of probabilities that this mayor would have the necessary resources to track the appellants elsewhere in Mexico. [46] In addition to testifying that Zamora's former mayor had finished his mandate, the appellants allege in their memorandum that Jose Carlos Lugo Godinez has not been mayor of Zamora since September 2018. Given that he is no longer acting as mayor, the RPD asked the appellants to explain how they could fear the former mayor now that he was no longer in power. They stated that they continued to fear him because what XXXX saw could compromise the municipal political party under which he was elected. At page 99 of the transcript, XXXX stated the following: [Translation] I don't know if we would be safe anywhere in Mexico. Because as I have said, I don't know the power or reach of this person and his contacts, whether to protect him or to do him harm. I don't know if he is a friend of the mayor of Zamora or of Merida. Or if there are people in those places where he may have favours to repay or who may want to hurt him. And anyone who knows about the things I witnessed could use them for any reason, to help him or harm him. Because that person, if he ever hears or learns of it, I don't know if there are contacts in the government, organized crime or the narcos. Like I said, they are all in collusion. [47] The phrase to remember from the appellants' testimony about the IFA is [translation] "I don't know." The appellants' evidence is based on assumptions and on the general crime rates in the state of Michoacan and the rest of the country. This does not satisfy the burden of proving that the former mayor of Zamora would be motivated and able to find XXXX and the appellants wherever they might be in Mexico, especially since he has ceased being the city's mayor. Of course, the fact that XXXX was present when a person was shot in the house of the mayor of Zamora and that she witnessed the removal of the body so that it would not be found in the mayor's house may cause her to feel personalized fear. But that is the full extent of the evidence regarding what she knows. The fact that the judicial police looked for her and approached her immediate family may have caused them to feel unsafe. The RPD therefore concluded for the first prong that the appellants [translation] "have not met their burden of establishing that those whom they fear are capable of finding out that they have relocated to one of the proposed cities and are motivated to do so. The elements raised to support their position are speculative and their objective basis is not sufficiently persuasive to support a different conclusion." For the reasons explained above, the RPD's conclusion is correct. Second prong-unreasonableness [48] The appellants criticize the RPD for failing to ask questions about their individual qualifications during the hearing and failing to take into account the kind of agriculture practised by the principal appellant and his father. [49] As established by the case law,8 the bar is set very high with respect to whether an IFA is unreasonable, considering the particular circumstances. This high standard requires evidence demonstrating the existence of conditions that would jeopardize the life and safety of a claimant in travelling or to living in an IFA.9 [50] The appellants' criticism that the RPD did not take their personal circumstances into account has no basis. The immigration forms of each are sufficient to establish their respective occupations. The principal appellant and his father are XXXX. XXXX is a XXXX XXXX, as is the principal appellant's mother. The principal appellant's wife is unemployed. XXXX is an XXXX XXXX, and the children are students. All of them speak Spanish, the language used in the proposed IFAs. [51] The appellants' other argument is that the RPD did not take into account the type of agriculture practised by the principal appellant and his father and the fact that this was not the primary type of agriculture practised in the proposed IFAs. With respect, I cannot accept this argument. Among other things, in the immigration forms (IMM 0008), the principal appellant listed "construction" as his intended employment if his claim for refugee protection in Canada were allowed. The principal appellant's father, in his form, listed "farming or anything" if his claim for refugee protection in Canada were allowed. XXXX is willing to perform any job, and XXXX and the principal appellant's wife are seeking secretarial positions. Claiming that it would be unreasonable for the appellants to seek refuge in the proposed IFAs because they could not work as XXXX XXXX does not meet the high threshold of the second prong of the IFA test. It is not a matter of the convenience or attractiveness of the other part of the country to the claimant.10 The appellants had to establish on a balance of probabilities that the proposed IFA would put their lives or safety at risk. When questioned about the IFA, the appellants raised the problems of high crime rates, disappearances, corruption and widespread insecurity in the country and the fact that, in their opinion, the collusion among the various authorities in Mexico would put them in danger. The RPD concluded that the appellants had [translation] "failed to establish that it would be objectively unreasonable for them, given the circumstances in the proposed cities and all the circumstances of the case, including their personal circumstances, to seek refuge in these cities." I agree. The RPD's conclusion is correct. [52] I conclude that Merida in the state of Yucatan and Guaymas in the state of Sonora are potential IFAs for the appellants. CONCLUSION [53] I dismiss the appeal and confirm the RPD's determination, that the appellants are neither Convention Refugees nor persons in need of protection. Charles Gauthier Me Charles Gauthier February 28, 2020 Date IRB translation Original language: French 1 Subsection 110(4) of the Immigration and Refugee Protection Act. 2 Canada (Minister of Citizenship and Immigration) v. Parminder Singh, 2016 FCA 96 and Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 3 Eshetie v. M.C.I., 2019 FC 1036. 4 G.D.B v. Her Majesty the Queen, [2000] 1 S.C.R. 520, paragraphs 26 to 29. 5 Rendon Segovia et al. v. The Minister of Citizenship and Immigration, 2020 FC 99, paragraph 22. 6 Appellant's Record, Exhibit A-2, paragraph 35. 7 Supra, endnote 4. 8 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.) 9 Ranganathan v. Canada (Minister of Citizenship and Immigration), (F.C.A., No. A-348-99). 10 Supra, endnote 8. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-00826 MB9-00827 / MB9-00828 / MB9-00829 MB9-00830 / MB9-00831 / MB9-00832 MB9-00833 / MB9-00834 / MB9-00835 RAD.25.02 (April 4, 2019) Disponible en français 22 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