MC0-08702

RAD File No. / No de dossier de la SAR : MC0-08702 MC0-08703 / MC0-08704 / MC0-08705 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 February 2, 2021 Date de la décision Panel Normand Leduc Tribunal Counsel for the persons who are the subject of the appeal Me Armando Javier Machado Rubio 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 INTRODUCTION [1] XXXX XXXX XXXX XXXX (the male appellant), his wife, XXXX XXXX XXXX XXXX (the female appellant), and their two minor children, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, all citizens of Mexico, are appealing the Refugee Protection Division (RPD) decision rejecting their refugee protection claims. [2] The male appellant, XXXX XXXX XXXX XXXX, was appointed as the designated representative for his two minor children. [3] For the following reasons, the appeal is dismissed. BACKGROUND [4] In Mexico, the appellants lived in the city of Morelia, in Michoacan state. [5] The male appellant alleges that on XXXX XXXX, 2018, while driving his car, he witnessed the kidnapping of another driver by men wearing hoods. These men allegedly also tried to intercept him, they pursued him, but the male appellant managed to get away. [6] The male appellant alleges that a few days later, he was pursued by a pickup truck, which forced him off the road. He was able to escape due to the presence of a police patrol. [7] The male appellant alleges that a few days later, he was forcibly confined by people who threatened him and told him that he should cooperate with them and that he would be given instructions at a future time. [8] The appellants left Mexico in XXXX 2019 for Canada, and they claimed refugee protection the following November. [9] Following a hearing on XXXX XXXX, 2020, the RPD rejected the refugee protection claims on the grounds that the appellants have an internal flight alternative (IFA) in Mexico, in the city of Tuxtla, in the state of Chiapas. [10] Before the Refugee Appeal Division (RAD), the appellants submit that the RPD erred in its analysis of the IFA, for reasons that will be set out below, in the Analysis section, if necessary. [11] For these reasons, the appellants are asking the RAD to set aside the RPD's determination and grant them protection or, alternatively, refer the matter to the RPD for re-determination. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [12] The RAD's role is to review RPD decisions by applying the correctness standard of review, after carrying out its own analysis of the record to determine whether, as submitted by the appellants, the RPD erred. ANALYSIS [13] The issue in this case is whether the RPD erred in its assessment of the IFA for the appellants in Mexico. [14] In my opinion, the answer to this question is no, for the following reasons. [15] The factors to be applied in assessing the IFA were defined by the Federal Court of Appeal in Rasaratnam1 and Thirunavukkarasu.2 It is clear from those decisions that the test to be applied in determining whether an IFA exists is two-pronged: i. ...the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists. ii. 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. [16] Both prongs must be satisfied to find that an IFA exists. [17] The RPD analyzed the issue of the IFA under section 97 of the Immigration and Refugee Protection Act (the Act) after concluding that the appellants' fear has no nexus with one of the five grounds set out in the refugee definition. [18] The appellants do not challenge this framework of analysis in their memorandum. Regardless, I am of the opinion that the conclusion that the appellants have an IFA in Mexico applies with respect to both section 96 and section 97 of the Act. [19] As for the first prong of the analysis, the RPD concluded that the appellants have an IFA in the city of Tuxtla, in the state of Chiapas, for the following reasons. * The documentary evidence on the Mexican cartels that operate in the state of Michoacan shows that they are not active in the state of Chiapas, even though the evidence presented does not establish that the appellants had been threatened by cartel members; * The city of Tuxtla is located about 1,130 kilometres from the city of Morelia; * The evidence presented does not show how the criminals could locate the appellants in the state of Chiapas; * The appellants are not an important enough target to motivate the criminals to track them down in the state of Chiapas, notably because the appellants were not bothered from XXXX 2018 until they left Mexico in XXXX 2019. [20] In their memorandum, the appellants argue that the RPD erred by failing to consider the male appellant's statement, which is presumed credible, that he fears being killed by these criminals in Mexico because he refused to cooperate with them. [21] I disagree with that argument. The male appellant's statements are not facts that arose and that the panel must find credible or not. Furthermore, the RPD found that facts alleged by the appellants were credible. These are instead fears expressed by the male appellant, and the panel must determine whether they are founded or not. [22] In this case, the RPD correctly concluded, based on the evidence presented, that these fears of being found by the criminals (for the purpose of section 96 or section 97 of the Act) were not founded. [23] The appellants then submit, starting at paragraph 38 of their memorandum, that the RPD erred by requiring that they file evidence demonstrating that the criminals could find them in Chiapas. [24] In my view, the RPD did not make that requirement. In its reasons, the RPD notes that the appellants did not file such evidence and bases its decision on the documentary evidence in the Immigration and Refugee Board of Canada's National Documentation Package on Mexico, which, as mentioned above, indicates that certain cartels have no presence or operational capacity in Chiapas. [25] In my opinion, that analysis by the RPD, which is based on the evidence, is correct, especially since there is no indication, including in the male appellant's testimony, that the criminals who threatened him are cartel members. [26] In paragraph 37 of their memorandum, the appellants cite a document that states that the cartels use family ties to locate people and gives the example of a lawyer with ties to the leaders of a drug cartel who gave the authorities information on the cartel and who was located. It also states that a large debt or personal vendetta could motivate a gang to look for someone outside their area. [27] In my view, however, the evidence presented does not show that the appellants have a large debt with the criminals or a cartel, or that there is a personal reason that could motivate the cartel to look for them. They are not in the same situation as the lawyer mentioned in the example, who gave information to the authorities. [28] It also seems logical to me that a cartel would use family ties to look for someone in Mexico. However, in this case, none of the evidence before the RPD or the RAD shows that the adult appellants' parents and numerous brothers and sisters, who live in Morelia, have been questioned or threatened by criminals looking for the appellants. This is additional evidence that shows that the criminals are not motivated to look for the appellants in Mexico. [29] Another important factor demonstrating that the criminals are not motivated to look for the appellants is that, as the RPD pointed out, they did not track the appellants in the approximately six-month period before they left Mexico, even though they were still living in Morelia and the male appellant was still working in the same location. [30] Considering the above, I draw the same conclusion as the RPD, that there is no serious possibility that the appellants would be persecuted or a probability that they would be subjected to a danger of torture or a risk of cruel and unusual treatment or punishment if they had to move to the city of Tuxtla. [31] As for the second prong of the IFA analysis-reasonableness-the RPD was of the opinion that there was no evidence showing that it would be objectively unreasonable for the appellants to move to the city of Tuxtla. [32] In its analysis, the RPD considered the fact that the proposed IFA location is one of the safest places in Mexico in terms of crime and that there is nothing to suggest that the adult appellants could not find jobs there. [33] The appellants, in their memorandum, do not specifically challenge the RPD's conclusion regarding the second prong of the IFA analysis. [34] I do not see where the RPD might have erred on this matter. [35] Like the RPD wrote in its reasons, the appellants did not invoke any reason establishing that it would be objectively unreasonable for them to move to the city of Tuxtla, in the state of Chiapas. [36] Considering the adult appellants' personal characteristics, there is nothing to suggest that they could not find jobs and housing there. Similarly, the minor appellants could attend school in that city. [37] There are no laws or regulations in Mexico that would, for example, prevent the appellants from moving to the state of Chiapas. [38] Accordingly, given everything above, I conclude that the appellants did not demonstrate that the RPD committed errors justifying the RAD's intervention. REMEDY [39] For these reasons, I confirm the RPD's determination that XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are not "Convention refugees" under section 96 of the Act or "persons in need of protection" within the meaning of section 97 of the Act. [40] The appeal is dismissed. (signed) Normand Leduc Normand Leduc February 2, 2021 Date IRB translation Original language: French 1 Rasaratnam v. Canada (1992) 1 F.C. 706 (C.A.), p. 710. 2 Thirunavukkarasu v. Canada (1994) 1 F.C. 589 (C.A.). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-08702 MC0-08703 / MC0-08704 / MC0-08705 RAD.25.02 (January 2020) Disponible en français 7 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January 2020) Disponible en français