MB9-28664

RAD File No. / No de dossier de la SAR : MB9-28664 MB9-28665 / MB9-28666 / MB9-28667 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 XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision January 18, 2021 Date de la décision Panel Me Isabelle Parizeau Tribunal Counsel for the persons who are the subject of the appeal Gisela G Barraza 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 FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (the appellant), as well as XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX (the minor appellants), citizens of Mexico, are appealing a Refugee Protection Division (RPD) decision rejecting their refugee protection claim. [2] The appellant fears that she and the minor appellants will be killed by members of the Knights Templar Cartel (the cartel) because her spouse allegedly stopped paying the amounts required by the cartel. [3] The RPD believed the appellant's allegations, except those it questioned when analyzing the internal flight alternative (IFA). The RPD concluded that there is an IFA in the cities of Mérida and Campeche in Mexico. [4] The appellants submit that the RPD downplayed the cartel's ability to cause harm, its resources, along with its ability and willingness to track them down. It erred when it drew a negative inference from the appellant's behaviour regarding her subjective fear. It erred in its analysis of the generalized risk in the cities of Mérida and Campeche. The RPD's proposed IFA was unreasonable because it unfairly separated the appellants from their husband and father. [5] The Refugee Appeal Division (RAD) is of the opinion that the determinative issue is the IFA. [6] The RAD confirms the determination of the RPD and dismisses the appeal. BACKGROUND [7] The problems allegedly began in XXXX 2016 when the appellant's eldest daughter was threatened and had her cell phone stolen by cartel members. The appellant's husband apparently went to these people's house and demolished everything. That is supposedly when the extortion and death threats began. In XXXX 2017, he reportedly left Mexico because he could no longer pay the required amount. His eldest daughter apparently did the same a few months later after being assaulted by cartel members in XXXX 2017. They reportedly arrived in Canada on XXXX XXXX XXXX 2017, and XXXX XXXX, 2017, respectively, and applied for refugee protection, a claim that was allowed on XXXX XXXX, 2018.1 [8] According to the appellant's written account,2 she was assaulted on XXXX XXXX, 2017, by two men who sought to know her husband's whereabouts; they told her that he owed them money and should pay up. On XXXX XXXX, 2017, one of the minor female appellants was allegedly accosted by a man who wanted to know her father's whereabouts. On XXXX XXXX XXXX 2017, the appellant was allegedly approached by a man who made the same request and told her that, next time, he would send her one of her dead children. The appellant's eldest daughter allegedly filed a complaint with the authorities on XXXX XXXX XXXX 2017, and the appellant filed a complaint on XXXX XXXX and XXXX XXXX, 2017.3 [9] The appellants reportedly left Mexico for Canada in XXXX 2017 and claimed refugee protection. ANALYSIS [10] The RAD conducted an independent analysis of all of the evidence, which included listening to the recording of the hearing before the RPD, and applied the standard of correctness.4 Internal flight alternative [11] In Rasaratnam5 and Thirunavukkarasu,6 the Federal Court of Appeal defines the criterion when assessing an IFA. It includes two prongs: 1. The Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted or, on a balance of probabilities, that he will be personally subject to a risk of harm in the part of the country to which it finds an IFA exists.7 2. Moreover, conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there.8 [12] Both prongs must be satisfied for a finding that an IFA exists. First prong [13] The burden was on the appellants to establish that in the IFAs proposed by the RPD in Mérida or Campeche, they would face a serious possibility of persecution within the meaning of section 96 of the Immigration and Refugee Protection Act (IRPA), or that they would, within the meaning of subsection 97(1) of the IRPA, on a balance of probabilities, be subjected to a risk to their lives or to a risk of cruel and unusual treatment or punishment. The RAD is of the opinion that the appellants did not do so. [14] The RAD analyzed the refugee protection claim within the meaning of subsection 97(1) of the IRPA, as the evidence did not establish, within the meaning of section 96 of the IRPA, a nexus to one of the five Convention grounds, namely, race, religion, nationality, membership in a particular social group or political opinion. The cartel's interest and ability to track down the appellants [15] The appellants' memorandum claims that the RPD erred in asserting that the cartel would not have the ability to track them down. They argue that, according to the documentary evidence,9 the cartel is a faction of the La Familia Michoacana cartel, a cartel that is still very active and is composed of several small groups. According to this documentary evidence, the cartels also have the technical and financial means to track down a person through family networks, private investigators, property records in the United States and Mexico, the installation of GPS on cars, and, beyond their zones of activity, the cartels use their representatives in other regions. [16] The appellants state that, according to the RPD, the cartel did not have the ability to track them down beyond a limited geographical area. They state that the RPD's argument, that their lack of concern while staying with the appellant's mother or mother-in-law proves the cartel's unwillingness or inability to track them down, is unreasonable. The fact that the cartel threatened the appellant's eldest daughter more than a year after her husband was granted refugee protection in Canada demonstrates the cartel's willingness and ability to cause harm, and the stays with the appellant's mother and mother-in-law were always brief and there is nothing to suggest that the cartel would not have tracked them down if they had stayed there longer. [17] The RPD concluded that the appellants did not demonstrate the agents of harm's interest or ability to track them down in the proposed IFAs. [18] The RPD was of the opinion that the evidence did not establish that the cartel has the ability and resources to track down the appellants. It related the appellant's testimony, according to which the cartel members were linked to the authorities and had contacts throughout the country. When confronted with the information in the documentary evidence,10 which states that the cartel has supposedly been losing power since 2015, the appellant replied that the cartel paid the authorities to track people down. As the RPD sought to establish what the cartel knew about the appellants to be able to track them down, the appellant responded that she did not know; she stated that the men who assaulted her family never used their names, but rather the words [translation] "your husband" and "your father." [19] The RPD also found that the appellants failed to establish the cartel's willingness or ability to track down the appellants beyond the area near their home. To reach such a conclusion, it considered the fact that every assault on the appellants had been perpetrated within a few minutes' walk of their home, while the cartel members' home, which had been demolished by the appellant's husband after the assault on her eldest child in XXXX 2016-an act that led to extortion-was located three streets from that home. Furthermore, the appellants were not threatened when they stayed with the appellant's mother or mother-in-law, who lived an hour's drive from their home. Those women were not bothered either. The appellant's brothers and sisters, along with those of her husband, all of whom lived in the same area, had not heard of the cartel. [20] The RAD agrees with the RPD that the evidence did not establish the cartel members' interest or ability to track down the appellants in the proposed IFAs. [21] It is true that the cartel is a faction of the La Familia Michoacana cartel, as the appellants stated. But the documentary evidence cited by the RPD, along with the updated documentary evidence, reveals a cartel that has been severely weakened. [22] The RAD disclosed to the appellants the XXXX XXXX, 2020, National Documentation Package (NDP) on Mexico, and specifically section 7, which addresses crime and corruption. It set a deadline to receive submissions but received none. [23] According to a document11 contained in this NDP, the cartel is a splinter group of La Familia Michoacana, which has been in decline and is primarily active in southern Mexico: 2.1.5 According to sources, the Knights Templar are a splinter group from LFM (InSight Crime May 5, 2020b; US July 28, 2020, 26). Several of their leaders were killed or captured in 2014 and 2015, weakening the organization that is "badly fragmented and splintered" (InSight Crime May 5, 2020b). According to InSight Crime, the Knights Templar are still active in southern Mexico, mostly in their home state, Michoacán (InSight May 5, 2020b). [24] It is true that, as the appellants state, the documentary evidence indicates that the cartels may use different means to track people down, but they still require the resources, which the above evidence fails to establish with regard to the cartel. The RAD is of the opinion that they must also have the ability to identify the person to be tracked down, which is not the case here. While listening to the recording of the hearing,12 the RAD noted that the RPD asked the appellant if the men who had threatened her and her daughters and sought to know the whereabouts of her husband and their father spoke her husband's name, her name or those of her daughters. The appellant replied in the negative, stating that they did not mention any names. When the RPD asked what information the cartel had that would allow them to track down the appellants anywhere in Mexico, the appellant replied13 that she did not know. [25] Unlike the appellants, the RAD is of the opinion that the fact that the attacks always took place near their home indicates the cartel's limited abilities beyond a certain geographical area. It is also of the opinion that the lack of concern expressed by the appellant's mother and mother-in-law, whose homes are approximately an hour's drive from the appellants' home, supports that contention. The RAD rejects the argument that, if the appellants had spent more time at these women's homes, the cartel might have found them there because, according to the appellant's testimony, the appellants spent a short time at their homes. While listening to the recording of the hearing, the RAD noted that the appellant testified14 that, approximately one month after her husband left Mexico and told her to be very careful, which would have been in XXXX 2017, she reportedly stopped spending time at her home every day; she and her children would spend one week at her mother's house and one week at her mother-in-law's house. [26] The appellants stated that the cartel's threat to the appellant's eldest daughter more than a year after her husband received refugee protection in Canada demonstrates its willingness and ability to cause harm. The RAD notes that this assertion is not accurate. In fact, the appellant's eldest daughter was allegedly threatened in XXXX 2016 and again in XXXX 2017, and the appellant's husband was granted refugee protection on XXXX XXXX, 2018, and, by then, the appellants had already been in Canada for some nine months. [27] The RAD is of the opinion that the attack on the appellants by cartel members on different dates and in proximity to their homes does not, on a balance of probabilities, demonstrate the cartel's interest in tracking them down in the proposed IFAs, or its ability to do so, considering the documentary evidence that describes it as "fragmented and splintered," especially since, according to the evidence, its members did not know the names of the appellants, the appellant's husband or that of their eldest daughter. [28] The RAD agrees with the RPD's conclusion regarding the appellants' failure to establish the cartel's ability or interest to track them down in the proposed IFAs. Appellant's behaviour inconsistent with her fear [29] The appellants' memorandum states that the RPD failed to consider the appellant's situation as a woman and single parent when it drew a negative inference regarding her subjective fear because of her behaviour with respect to protecting her children. The appellant was alone with three children after the departure of her husband and eldest daughter. It is true, as the RPD pointed out, that her husband had told her to be careful and had recommended that she not let the children go out alone. According to the appellants, the conclusion that the appellant did not adequately protect her children would impose a heavy burden on single mothers, who are already subject to multiple acts of violence. Furthermore, the fact that she did not move or change her children's school to avoid arousing suspicion is consistent with genuine fear. [30] The RPD drew a negative inference from the fact that the appellant kept her ties to the house that her husband was forced to leave due to threats when she could have moved somewhere else, surrounded by her relatives. When the threats against her and the minor appellants began in XXXX 2017, she continued to return to the neighbourhood until she left Mexico in XXXX 2017. [31] When questioned by the RPD regarding the measures she took to protect herself, the RPD noted that the appellant testified that she kept the house but did not stay there full time, as she occasionally went to her mother or mother-in-law's house. The appellant allegedly did not leave the neighbourhood because she did not want to arouse suspicion by moving. And her children had to attend school. Here, the RPD noted that the appellant confirmed that her children missed school every time she stayed with her mother or mother-in-law for several weeks. The appellant noted the difficulty of enrolling the children in another school but did not make any inquiries. When asked by the RPD why the appellant took walks by herself and sent her daughters, including the youngest one, to the store to run errands after the eldest one was threatened in XXXX 2017, she replied that she did not expect anything to happen to them and that she sent the youngest one on an errand because she needed items from the store. [32] The RAD shares the RPD's opinion that the appellant engaged in behaviour that is inconsistent with her fear. [33] The RAD is aware that the appellant's situation as a single mother with three children was not an easy one, and it does not judge the actions she took to protect her children. Rather, the RAD draws a negative inference regarding her alleged fear from the fact that she stayed in the same neighbourhood, that her daughters occasionally shopped and went to school there between XXXX 2017, when her husband allegedly told her to be careful, through XXXX 2017 in particular, when the first attack on one of the minor appellants occurred, and their departure from Mexico approximately four months later. The appellant also testified that she regularly went to her mother and mother-in-law's house and experienced no problems there. The RAD has difficulty understanding why she did not stay there and seek information regarding her children's enrolment in another school, despite knowing this would present obstacles. [34] The RAD concludes it was correct for the RPD to draw a negative inference from the appellant's behaviour with regard to her subjective fear. Generalized risk of crime [35] The appellants acknowledge that the documentary evidence15 specifies the main cities where the cartels are most active and that Mérida and Campeche are not included but, according to them, this does not mean the cartels have no presence there. The appellants assert that the RPD erred in its analysis of the generalized risk. [36] The RPD noted that, at the hearing, the appellant testified that the appellants would be unable to resettle in Mexico due to crime and delinquency. The RPD referred to the aforementioned documentary evidence to assert that the cartel was not present in Mérida and Campeche. It also stated that, according to other documentary evidence,16 these two cities are the most peaceful places in Mexico, with low rates of violence, theft, organized crime and homicide. The RPD also concluded that the risk regarding delinquency is a risk faced by others who are from Mexico or those who spend time there. [37] The RAD shares the RPD's opinion. [38] According to the documentary evidence cited by the appellants in their memorandum and by the RPD in its reasons, it is true, as the appellants assert, that it does not state that the cartel is not present in Mérida and Campeche. But it does indicate its areas of influence very specifically, along with the type of activities involved:17 3.3 La Familia Michoacana La Familia Michoacana, or factions thereof, including Los Cabelleros Templarios, operate in the Tierra Caliente region (Stratfor 29 Jan. 2019, 4; US 3 July 2018, 12). Sources indicate that the two groups operate in Michoacán (US 3 July 2018, 12; InSight Crime 22 June 2017). According to the US CRS report, fragmented cells of La Familia Michoacana remain active in trafficking, kidnapping, and extortion in Guerrero and Mexico, as well as methamphetamine production and smuggling, and trafficking marijuana and cocaine (US 3 July 2018, 20). Sources state that the Caballeros Templarios engage in extortion, drug trafficking (InSight Crime 22 June 2017; US 3 July 2018, 21), methamphetamine production, and illegal mining (US 3 July 2018, 20-21). Los Caballeros Templarios [and La Familia Michoacana (US 3 July 2018, 21)] also target avocado farmers in Michoacán (US 3 July 2018, 21; OCCRP 18 June 2019); tactics include kidnapping and hijacking shipments (OCCRP 18 June 2019). [39] The documentary evidence18 referred to earlier by the RAD indicates that the cartel is most active in southern Mexico. [40] The documentary evidence cited by the RPD and updated19 in the September 30, 2020, NDP on Mexico, which was disclosed to the appellants, and for which they did not make submissions within the prescribed deadline, indicates that: Mexico's peacefulness deteriorated by 4.3 percent in 2019, marking the fourth successive year of decline. The deterioration was driven by substantial increases in criminal activity, with the rate of organized crime rising by 24.3 percent. Consequently, 23 of the 32 states deteriorated in peacefulness, while only nine improved. However, the rate of increase in homicide slowed significantly compared to the prior year, increasing by only 1.4 percent. [41] It also states: "In 2019, Yucatán, Tlaxcala, Chiapas, Campeche and Nayarit were the five most peaceful states in Mexico." Yucatan is the calmest state and Campeche the fourth. Mérida is the capital of the State of Yucatan and Campeche is the capital of the State of Campeche.20 [42] The RAD considers the RPD's conclusion with regard to the generalized risk of crime to be correct. [43] The RAD is of the opinion that the appellants have not demonstrated that, on a balance of probabilities, they are personally at risk of harm in the cities of Mérida and Campeche. It considers the RPD's conclusion regarding the first prong of the IFA to be correct. Second prong [44] The Federal Court of Appeal set a very high threshold to determine whether an IFA is unreasonable: "It requires nothing less than the existence of conditions which would jeopardize the life and safety of a claimant in travelling or temporarily relocating to a safe area. In addition, it requires actual and concrete evidence of such conditions."21 [45] According to the appellants, the RPD's proposed IFA is unreasonable because it unfairly separates the appellant from her husband and the minor appellants from their father. They argue that the Federal Court recognized in Ramanathan22 and Sooriyakumaran23 that forced separation of families can be unreasonable, along with the special bond between a parent and a young child. [46] Without question, the RAD acknowledges the difficulty involved when a family is separated. It analyzed the decisions cited by the appellants in their memorandum. It is of the opinion that the situations in those cases were different from the one in this case. One case involved a 75-year-old dependent refugee protection claimant, and the other involved a refugee protection claimant whose two minor children, aged 11 and 13, had been granted refugee status in Canada and were alone there. [47] In Ramanathan,24 the Federal Court concludes that the Board had taken too absolute a view regarding the limits of its humanitarian examination: A test of whether an IFA is unreasonable or unduly harsh in all the circumstances is bound to involve the consideration of some factors, at least, which will undoubtedly be the same sort of considerations that are taken into account in humanitarian and compassionate relief. I might even go so far as to say that if one were to exclude every consideration which might arguably be called humanitarian or compassionate from the second branch of the IFA test, there would be nothing left. ... However, it seems to me that the factor of requiring an elderly, dependent and unwell person to live alone in a governmental or publicly supported home with governmental or publicly supported health and other social services provided to him when there is an alternative where he is presently living where he has the emotional and family support gained from close members of his family is something which should be considered when inquiring as to whether it would be unduly harsh to send that person from the latter situation to the former. [48] In Sooriyakumaran,25 the Federal Court concludes that the Board should have considered the special relationship between the claimant and her children: The relevance of the children's situation in this case is unrelated to the principle of family unity or to an application for humanitarian and compassionate consideration. The applicant's family situation is simply a human factor that ought not to be excluded in applying the second branch of the internal flight alternative test.... Counsel for the respondent was correct when she forcefully argued that virtually no evidence focussed on the impact of separating the applicant from her children. There was some reference to the plight of the children in the personal information form. However, I have concluded that the tribunal's error nonetheless requires judicial intervention. It was an error in law for the tribunal to close its mind to the natural bond between a parent and her minor children, particularly when all three had established a fear of persecution in northern Sri Lanka. That special relationship speaks for itself and is a circumstance particular to this applicant which the tribunal had to consider before concluding that it would be unduly harsh for her to seek an internal flight alternative in Colombo prior to claiming refugee status in Canada. [49] The RAD is of the opinion that the situations analyzed by the Federal Court in the two decisions cited above do not allow it to conclude that the separation of the appellants from the appellant's husband and the father of the minor appellants meets the established threshold to conclude that the IFA is unreasonable. [50] In its analysis of the IFA's first prong, the RAD indicated the reasons behind its opinion regarding the lack of evidence that the cartel members had an interest or ability to track down the appellants. The documentary evidence it cited does not establish that crime and delinquency in the cities of Mérida or Campeche would jeopardize the lives of the appellants. [51] The RAD concludes that the appellants have not submitted any real or concrete evidence regarding conditions in the cities of Mérida and Campeche that would jeopardize their lives and safety. [52] The RAD considers that the RPD was correct in concluding that that it would not be unreasonable for the appellants to move to the proposed IFAs. [53] The RAD agrees with the RPD's finding that an IFA exists in the cities of Mérida and Campeche in Mexico. [54] The RAD is of the opinion that the RPD was correct to conclude that the appellants failed to demonstrate a serious possibility of persecution within the meaning of section 96 of the IRPA or a risk of harm within the meaning of subsection 97(1) of the IRPA if they were to return to Mexico. [55] The RAD considers the RPD's determination to be correct. CONCLUSION [56] The RAD dismisses the appeal and confirms the impugned decision, according to which the appellants are neither Convention refugees nor persons in need of protection. (signed) Isabelle Parizeau Me Isabelle Parizeau January 18, 2021 Date IRB translation Original language: French 1 SPR-1, Refugee Protection Division Record (RPD Record), pp. 213 to 219. 2 Ibid., pp. 24 and 25. 3 Ibid., pp. 234 to 245. 4 Canada v. Huruglica, 2016 FCA 93. 5 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 6 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). 7 Supra endnote 5, p. 710. 8 Supra endnote 5, pp. 709 and 711. 9 SPR-1, National Documentation Package (NDP) on Mexico, August 30, 2019, and September 30, 2020, Tab 7.15: 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). Immigration and Refugee Board of Canada (IRB), MEX106302.E, August 15, 2019. 10 SPR-1, NDP on Mexico, August 30, 2019, Tab 1.7: Building Peace in Mexico: Dilemmas Facing the López Obrador Government. Latin America Report N°69. International Crisis Group. October 11, 2018, p. 12; Tab 7.2: Mexico: Organized Crime and Drug Trafficking Organizations. United States. Congressional Research Service. June S. Beittel. August 15, 2019. R41576, p. 18; pp. 28-29. 11 NDP on Mexico, September 30, 2020, Tab 7.18: Crime and criminality, including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available to victims, including witness protection (2018-September 2020). IRB, MEX200313.E, September 21, 2020, p. 11. 12 Audio recording of the hearing held on November 1, 2019, before the Refugee Protection Division (RPD), see approximately 0:35:59 to 0:36:31. 13 Ibid., see approximately 1:13:29 to 1:14:20. 14 Ibid., see approximately 0:39:56 to 0:44:55. 15 SPR-1, NDP on Mexico, August 30, 2019, and September 30, 2020, Tab 7.15: 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). IRB, MEX106302.E, August 15, 2019. 16 SPR-1, NDP on Mexico, August 30, 2019, Tab 1.5: Mexico Peace Index 2019, Institute for Economics and Peace, April 2019. 17 SPR-1, NDP on Mexico, August 30, 2019, and September 30, 2020, Tab 7.15: 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). IRB, MEX106302.E, August 15, 2019, p. 8. 18 Supra endnote 11. 19 NDP on Mexico, September 30, 2020, Tab 1.5: Mexico Peace Index 2020, Institute for Economics and Peace, May 2020, pp. 6 and 7, 11 and 12 and 16 to 18. 20 SPR-1, NDP on Mexico, August 30, 2019, and September 30, 2020, Tab 1.1: Mexico, United States. Central Intelligence Agency, 1997. 21 Ranganathan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 16789 (FCA), para. 15. 22 Ramanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8469 (FC). 23 Sooriyakumaran v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 8566 (FC). 24 Supra endnote 22, paras. 11 and 12. 25 Supra endnote 23, paras. 8 and 9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-28664 MB9-28665 / MB9-28666 / MB9-28667 RAD.25.02 (January 2020) Disponible en français 14 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