MC2-31620

RAD File / Dossier de la SAR : MC2-31620 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Date of decision July 7, 2023 Date de la décision Panel J.W. Richards Tribunal Counsel for the person who is the subject of the appeal Miguel Mendez Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister Anne-Marie Angell Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appeal and refer it back to the Refugee Protection Division (RPD) for redetermination. [2] XXXX XXXX XXXX XXXX (the Appellant) is a citizen of Mexico. [3] The Appellant fears harm at the hands of members of Los Zetas, a renowned Mexican drug trafficking organization. The Appellant was a XXXX XXXX in Michoacan State. In XXXX 2017, the cartel began to coerce him and other XXXX XXXX to XXXX XXXX and XXXX XXXX. The cartel extorted some of the XXXX XXXX, leading them to collectively decide to flee the country. The Appellant also blames the cartel for the deaths of his brother and other relatives, dating back to 2011. The Appellant arrived in Canada in XXXX 2017. [4] The RPD rejected the Appellant's claim, finding that viable internal flight alternatives (IFAs) exist in Mérida and Campeche. [5] The Appellant contends that the RPD's decision is erroneous, primarily because the new evidence provides sufficient proof of an ongoing motivation by the agents of harm. The Appellant is requesting to admit new evidence. The Appellant is also requesting an oral hearing, if necessary. [6] The determinative issue in this appeal is the existence of a viable IFA. After my independent assessment of the record, I am unable to accurately assess the safety of the proposed IFA without hearing evidence that was presented to the RPD. Notably, the credibility of the Appellant's forward-facing risk requires further examination. Because I am unable to reach a final decision, I am referring this matter back to the RPD for redetermination. DECISION [7] The appeal is allowed. I set aside the determination of the RPD and send this matter back to the RPD to be redetermined. NEW EVIDENCE The evidence presented by the Appellant is rejected [8] To decide this appeal, I need not consider the new evidence that was submitted by the Appellant. As a result, I am rejecting the Appellant's request to admit new evidence. An oral hearing is not permitted [9] Because there is no admissible new evidence in this appeal, the law prevents me from holding an oral hearing, pursuant to subsection 110(6) of the Immigration and Refugee Protection Act (IRPA). ANALYSIS [10] My role is to look at all of the evidence and decide if the RPD made the correct decision.1 The procedural history related to the Minister's intervention [11] The RPD found that the Appellant was a generally credible witness. It determined that members of Los Zetas approached the Appellant and his colleagues. However, the RPD also found that the Appellant failed to establish that the deaths of his relatives were directly related to him.2 In the end, the RPD found that Mérida and Campeche were viable IFAs. [12] It is noteworthy that the Minister intervened both at the RPD and in this appeal. The Minister raised credibility issues because the Appellant entered Canada on the same day as four other Mexican nationals, who submitted the exact same narrative. Moreover, the Minister highlighted the fact that the port of entry notes suggest that the Appellant came to Canada with the principal intention to work. As a result, the Minister requested that the RPD allow the disclosure of information from other refugee claims, pursuant to RPD Rule 21.3 [13] At the beginning of the RPD hearing, the Appellant's representative revealed that various documents, including a modified Basis of Claim (BOC), were not disclosed to the Minister.4 The RPD proceeded to summarily reject the Minister's Rule 21 application and, pursuant to RPD Rule 70, dispense with the requirement of notifying the Minister about the updated documentation.5 [14] Prior to reaching this decision, the Tribunal did not question the Appellant about the substance of the Minister's allegations. The RPD Member stated that "...it is simply a case of a group of people that have lived the same problems and who claimed refugee protection together."6 Furthermore, the RPD Member's decision regarding the Minister's intervention is not canvassed in the RPD's written decision. Therefore, the Minister would have had to review the hearing recording or hearing transcript to discover how the Tribunal dealt with the issue. [15] Overall, this sequence of events exposes the difficulties that arise when the Minister meaningfully intervenes in a matter, and yet does not attend the RPD proceedings. The credibility of the Appellant's forward-facing risk of harm in the IFA location requires further assessment [16] For the purposes of this appeal, I am tasked with reviewing the entire record and independently assessing the evidence. The determinative issue is the existence of an IFA in Mérida or Campeche. Part of that analysis requires me to consider whether the proposed IFAs are safe. [17] The procedural history outlined above palpably raises serious questions regarding the credibility of the Appellant's forward-facing risk in the IFA locations. Additional questioning of the Appellant is needed. The Appellant may wish to bring witnesses to support his allegations. Moreover, the Minister may have additional relevant information to provide. The appropriate outcome is to refer this matter back to the RPD for redetermination [18] I am unable to reach a final determination in this appeal without hearing evidence that was presented to the RPD. The Appellant's credibility remains at issue, in particular the credibility of his forward-facing risk of harm. Potential internal flight alternatives in Mérida and Campeche need to be thoroughly examined. Unless the Minister expressly decides not to participate in the proceedings, the Minister should be notified of all new information related to this claim. All parties should be provided with the transcript of the previous RPD hearing. [19] I have included relevant directions, below. CONCLUSION [20] The appeal is allowed. I set aside the determination of the RPD and send this matter back to the RPD to be redetermined. DIRECTIONS TO THE RPD [21] The Appellant's refugee claim is referred back to the RPD with the following directions: (i) The matter is to be heard by a different RPD panel; (ii) The RPD is to decide the merits of the Appellant's refugee claim. The RPD is to determine whether: (a) there is an objective basis to the fear of persecution or, in the alternative, a prospective, personal, and non-generalized risk of section 97 harm; and (b) Mérida or Campeche are viable internal flight alternatives. (iii) The Appellant's credibility remains at issue; (iv) Both the Appellant and the Minister are to be informed about any developments regarding this claim (e.g., new evidence; translations of new evidence); and (v) The RPD may alter my findings should evidence to the contrary come to light. (signed) J.W. Richards J.W. Richards July 7, 2023 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 RPD Record, RPD's Reasons and Decision, at para. 6. 3 RPD Record, Exhibit 4, Application for disclosure of information from another claim, at pp. 310-314. 4 Transcript of the RPD Hearing, at p. 3, lines 6-13. 5 Ibid., at p. 3, lines 31-49; p. 4, lines 1-3. 6 Ibid., at p. 3, lines 38-39. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : MC2-31620 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français