MB9-25846

RAD File No. / No de dossier de la SAR : MB9-25846 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 Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision March 2, 2021 Date de la décision Panel Me Richard Sheitoyan Tribunal Counsel for the person who is the subject of the appeal Me Alfredo Garcia Conseil de la personne en cause Designated representative N/A 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 is a citizen of Mexico who has endured many hardships in life. [2] The essence of her initial written account is a return to Cuernavaca after a few years in the United States where she faced some difficult situations. [3] In Cuernavaca, she was an employee at an XXXX XXXX, and on XXXX XXXX XXXX 2017, she and her husband were kidnapped then released by three individuals who claimed to be members of a cartel demanding that she cooperate with them. On XXXX XXXX XXXX 2017, two couples went to her office and demanded that the owner pay them XXXX XXXX XXXX pesos per month. The extortionists followed up with her by telephone on XXXX XXXX XXXX 2018, and on XXXX XXXX XXXX 2018, her husband, XXXX XXXX was stopped and assaulted in connection with the extortion demand. [4] Significant evidence was subsequently submitted in the form of an amendment to her written account: - She was the victim of a sexual assault in XXXX 2003. - She joined the XXXX XXXX in XXXX 2015 and was the XXXX XXXX for two of them. - One year later, a federal police patrol stopped her and drove her to their facilities, where they took the money she was holding for the XXXX XXXX and demanded that she pay them XXXX XXXX XXXX pesos a month. - Three weeks later, she evaded two vehicles that had trapped her near her house by honking her horn to get the attention of nearby security guards. - When she moved to a secure complex, she was the victim of an attempted break and enter on XXXX XXXX XXXX 2017. - On XXXX XXXX XXXX 2017, one of her four puppies was seriously and brutally injured to the point where she died four days later. - In the months that followed, her car tires were repeatedly slashed and she felt that she was being followed. - She states that during the event of XXXX XXXX XXXX 2017, mentioned earlier, one of the three kidnappers was identified as one of the federal police agents who had stopped her the previous year. - On XXXX XXXX XXXX 2018, her husband was abducted and assaulted. - Since then, she has received threatening calls and has seen random vehicles lurking around their home. [5] In addition to these painful past experiences, she has also been the victim of domestic violence since her arrival in Canada on XXXX XXXX XXXX 2018. She separated from her husband on XXXX XXXX XXXX 2018, and got back together with him from XXXX XXXXto XXXX XXXX XXXX 2018, before realizing that nothing had changed. She received assistance from resources such as the Programme régional d'aide et d'intégration des demandeurs d'asile (PRAIDA) [regional program for the assistance and integration of refugee protection claimants], the Réseau d'intervention auprès de personnes ayant subi de la violence organisée (RIVO) [intervention network for victims of organized violence], the Mouvement contre la violence et l'inceste [movement against violence and incest], and the Clinique des demandeurs d'asile et des réfugiés (CDAR) [clinic for asylum seekers and refugees]. [6] In XXXX 2019, her husband filed a petition for divorce, and she filed a domestic violence complaint against him on XXXX XXXX XXXX 2019. [7] The Refugee Protection Division (RPD) determined that she is not a refugee within the meaning of the United Nations Convention Relating to the Status of Refugees (Convention) or a "person in need of protection" within the meaning of section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA). It found that numerous omissions, contradictions and inconsistent behaviours that were not satisfactorily explained undermined XXXX XXXX XXXX credibility regarding her allegations of risk to her life. Despite the foregoing, the RPD also considered that a viable internal flight alternative (IFA) was available in Yucatan or in Campeche. [8] It based its findings on XXXX XXXX XXXX credibility primarily on the following: - the omission in her initial Basis of Claim Form (BOC Form) of several significant incidents, including with regard to one of her agents of persecution; - the failure to mention the threat to her family during the incident of XXXX XXXX XXXX 2017; - contradictions on the relationship with her husband; - the nature of the threats received following the incident of XXXX XXXX XXXX 2018; and - inconsistent behaviour reflected by the many returns to Mexico, continuing to work for the same employer who was causing trouble for her, and a move to the very location where she had encountered problems. [9] It based its conclusions regarding the IFA on the fact that her husband would not have the motivation or ability to find her in the two locations mentioned. With respect to the objective reasonableness of the locations, the RPD considered that her profile as an educated woman who has held numerous jobs enables her to resettle and provide for her needs. [10] To support his first argument, counsel submits as new evidence the statutory declaration of XXXX XXXX, a worker for the Mouvement contre le viol et l'inceste in connection with the hearing of September 12, 2019. [11] Counsel argues that the RPD's decision is erroneous, particularly with respect to the following: - the untimely presence of the appellant's ex-husband at the hearing of September 12, 2019, despite the cases being split, overwhelmed her to such an extent that refusing to postpone the hearing is a breach of procedural fairness; - it minimizes the assaults against the appellant; - it fails to consider her profile as a woman who has been sexually assaulted and analyzes both written accounts to find details that undermine her credibility; - it failed to consider the context in which each written account was prepared; - the IFA analysis does not take into account her husband's background to justify his interest in finding her or his status as a lawyer to support his ability and, lastly, the appellant's mental health profile was not considered in the reasonableness analysis. [12] The determinative issues are procedural fairness, credibility, and the availability of an IFA in Yucatan or in Campeche. DETERMINATION [13] I dismiss the appeal. The RPD correctly determined that the appellant is neither a Convention refugee nor a person in need of protection. NEW EVIDENCE The evidence presented by the appellant is rejected [14] Under the IRPA,1 I can only allow evidence: i. that arose after the RPD rendered its decision; ii. that was not reasonably available at the time of the decision; or iii. that the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was rendered. [15] If the evidence meets one or more of these requirements, I must decide whether the evidence is new, credible and relevant before admitting it.2 [16] The new evidence submitted is a written statement from XXXX XXXX, a worker for Mouvement contre le viol et l'inceste in connection with the hearing of September 12, 2019. The affidavit is dated XXXX XXXX XXXX 2019, after the decision was rendered, and refers to the appellant's state of mind on that day, notably due to the presence of her ex-husband. The details XXXX XXXX XXXX noted at the hearing, whether it was her client's emotional state, the impact of the RPD's application of guidelines 4 and 8, or any other findings she is able to make, could have been presented either before the next hearing on September 23, or even after this hearing and before the decision was rendered on October 15, 2019. [17] Based on the claims regarding the acts attributed to the member, it would have been expected in the circumstances that this evidence would have been presented before the decision was rendered. I cannot accept it. ANALYSIS [18] My role is to examine all of the evidence and establish whether the RPD's decision is correct.3 Breach of procedural fairness [19] The breach of procedural fairness raised stems from the RPD's refusal to postpone the hearing when the appellant was in a precarious emotional state after she was inadvertently exposed to her ex-husband at the hearing and to one of her agents of persecution. [20] The panel acknowledged that the appellant was a vulnerable person, and the evidence in this regard is supported by many elements on the record, including consultations, follow-ups, treatments, clinical sessions, medication and various diagnoses through different support organizations. I do not doubt the appellant's precarious emotional state and how her ex-husband's presence could be a major source of her problems. [21] However, I note that the RPD demonstrated great sensitivity and caution with the appellant following the incident at the start of the hearing. It suggested that she take a 30-minute break and told her that she could take the time needed. When it addressed evidence of a more sensitive nature, it gave the appellant the opportunity to take a break to regain her composure. I do not consider that there was a breach of procedural fairness given the accommodations made by the RPD so that she would feel safe. I also note that the RPD states that if it were not possible for her to continue following the 30-minute break given so she could regain her composure, it was willing to postpone the hearing. Importance given to the assaults against the appellant [22] Counsel claims that the RPD minimized the assaults against the appellant. He cites the following as examples: - paragraph 5 t) of the decision where the RPD noted that the appellant mentioned having faced conjugal violence and ongoing abuse from her ex-husband, without considering that she had also been sexually abused; - paragraph 10, which mentions the presence of a worker from RIVO when the worker was actually from Mouvement contre le viol et l'inceste, demonstrates that the RPD was blind to the sexual assaults suffered; - an erroneous interpretation of the details involving her sexual assault in 2003; and - the failure to mention the sexual assault experienced at the hands of the federal police in XXXX 2016. [23] Paragraph 5 t)a of the RPD decision is a summary of several incidents included in the appellant's amended BOC Form. The extrapolation made by counsel of this summary is erroneous. The RPD made a point of mentioning the ongoing abuse without labelling it. Doing so demonstrates that it was sensitive to the appellant's ordeal without having to repeatedly label it. [24] While the wrong affiliation was indicated for the worker assisting XXXX XXXX XXXX at the hearing, it is nevertheless an outreach organization for people who have faced violence. Equating this error to the RPD being blind to the sexual assaults is erroneous. [25] The RPD inferred from the amended written account that the manager was XXXX XXXX XXXX assailant at the nightclub. Such a conclusion was based on circumstantial inferences and was not established by the evidence. Despite the foregoing, this conclusion is peripheral, and while the assailant was not determined, there is no indication that the RPD did not believe that the incident had occurred. [26] Contrary to what counsel states, the RPD's summary did not fail to mention the sexual assault from the federal police in XXXX 2016. It was careful to reiterate what was mentioned in the amendment without labelling it differently from the way in which it was reported. Profile as a woman who had been sexually assaulted in the context of both written accounts [27] Counsel claims that the RPD did not consider Guideline 4,4 thereby failing to consider many of the symptoms exhibited by a sexual assault victim, including fear, a loss of confidence and self-esteem, difficulty in concentration, self-blame, and memory loss or distortion. He alleges that the RPD: - merely compared both written accounts without considering the guideline; - did not consider the guideline during the appellant's explanations to clarify the discrepancies between the written accounts; and - did not consider that the first written account was prepared in a context where she was in the presence of her ex-husband who controlled her actions. [28] The RPD noted that the first written account fails to mention the following: - the assault of 2003 when she was working at a nightclub, but understands why she had kept if from her ex-husband; - the kidnapping by the federal police agents in XXXX 2016; - the attempt to intercept her, which she avoided, in XXXX 2016; - the attempted break and enter in XXXX 2017; - the incidents involving slashed tires and being tracked by third parties; and - domestic violence from her ex-husband, though she withheld the constraints she faced at that time. [29] XXXX XXXX XXXX was kidnapped by the federal police in XXXX 2016 and, as of XXXX 2016, became romantically involved with the man who became her ex-husband. During the incident of XXXX XXXX XXXX 2017, she recognized one of the assailants as being one of the federal police officers. She hid the XXXX 2016 event from her spouse, as well as the identification she made. She explains that she did this to avoid recalling what had happened by explaining it or by having to respond to questions. [30] The RPD considered this explanation to be unsatisfactory given that the federal police is the common denominator for the incidents and that she alleges that she had told her boyfriend what had happened to her. It found that the credibility of the allegation, which is considered determinative, is significantly undermined for not having been mentioned in the initial BOC Form, despite confirming at the start of the hearing that the BOC Form was complete, true and correct. [31] The conditions in which the first written account was prepared do not explain why it reflects the situation experienced by XXXX XXXX XXXX. In this case, a number of important details were not mentioned. She explains that she was under her ex-husband's control and that she was faced with her experience with him and with the past traumatic experiences she had and kept to herself. Furthermore, the state she was in when the hearing began should be taken into consideration, as well as the effect her state of mind might have had on her understanding of the scope of her statement. Lastly, apart from this state of mind, she subsequently provided a detailed written account, meaning that it was not unlikely that when she confirmed that the content of the declaration was truthful, she could consider it as such without needing to make corrections, which were in her lengthy amendment. [32] I consider XXXX XXXX XXXX explanations with respect to keeping silent about her experience in XXXX 2016 to be satisfactory, despite the apparent link with that of XXXX XXXX XXXX 2017. Given the justifications provided by XXXX XXXX XXXX, the RPD's conclusion in this regard is erroneous. [33] The appellant's memorandum states that the RPD overlooked many details by concluding that it was mere speculation. The mistreatment of her dog, which led to her being euthanized, is cited as an example. It is a singular example put forward to illustrate the point. None of the evidence shows that the abuse against her dog is linked to the incidents with the federal police. The necessary legal action was taken against the grooming company, and that is the extent of the evidence on this matter. [34] In addition to XXXX XXXX XXXX silence on the link between the events of XXXX 2016 and of XXXX XXXX XXXX 2017, the RPD based its conclusion on other factors to which the appellant's memorandum does not make reference and which are not contested on appeal. [35] It noted contradictions on the relationship with the ex-husband with respect to the following: - when and how they met, namely in Morelos in XXXX 2016 or in Canada through the Tinder application in XXXX 2017; and - the reason for her trip to Canada in XXXX 2017, namely to meet her mother-in-law or to accompany her niece who was coming here to study English. [36] These are factors that do not easily lead to confusion and which cannot be explained by stress or the appellant's state. [37] Lastly, factors not mentioned in the amended written account were added at the hearing. For example, the nature and breadth of the scope of the threats following the incident of XXXX XXXX XXXX 2018, where her ex-husband was assaulted are different. The amended written account mentions nothing other than threatening calls and cars driving around the area where they live. At the hearing, reference was made to anonymous threats left under the door or thrown inside demanding payment. This is additional information that should have been included in the written accounts. However, since these are details, they carry little importance in weighing the appellant's credibility considering her state of mind. [38] Another example is the nature of the threat made during the incident of XXXX XXXX XXXX 2017. The written accounts state that if the incident were not kept secret, they would regret it, while at the hearing this would result in an attack against the family or someone important. No explanation is provided regarding this discrepancy. It is an incidental factor that is insufficient to undermine credibility. [39] The RPD also noted that the initial written account mentions a legal consultation after the incident of XXXX XXXX XXXX 2017, while the second and the hearing suggest otherwise. The explanation provided in response to questioning focused on the preparation of the initial written account and on the husband's control over the appellant. The RPD drew a negative finding regarding the inconsistency of this event. However, given the situation reported by the appellant with respect to her ex-husband's behaviour when completing the declaration, the explanations put forward should be considered satisfactory. [40] The RPD also looked at the appellant's behaviour. It concluded that making numerous trips and returning to the same location without seeking protection and while continuing to work for the same company is behaviour inconsistent with the fear alleged. The appellant explained that it was only after XXXX 2017 that the incidents were determinative in her decision to leave Mexico. The RPD considered this explanation to be unreasonable. It should be noted that she: - was kidnapped by federal police agents in XXXX 2016; - evaded an attempted interception in XXXX 2016; - was a victim of an attempted break and enter in XXXX 2017; and - faced intimidation through cruelty to her dog, in addition to many instances of vandalism to her vehicle, regardless of where it was parked. [41] Furthermore, she continued to stay in the same area while working at the same job with the same employer, even though all the incidents she experienced have one thing in common, namely seeking information in connection with her work. [42] The RPD's finding that the appellant's credibility is undermined and the lack of fear for her life, based on her returns to Mexico, to the same location and to the same job, without taking steps to claim protection, is correct. Internal flight alternative [43] In light of the factors raised by the RPD, it found that XXXX XXXX XXXX credibility is undermined and that her actions reflect a lack of fear with respect to her agents of persecution in Mexico. I am of the opinion that this conclusion is correct. It also analyzed the IFA by considering the conjugal situation and the prospective risk she faces in light of the developments in Canada (context of domestic violence, petition for divorce and police complaint) if she and her ex-husband were to return to Mexico. [44] The appellant's memorandum claims that the regions of Campeche or Yucatan are not safe locations since her agents of persecution are federal police officers and cartel members who have access to national databases to find her. Having found that her credibility is undermined by actions inconsistent with the alleged fear concerning the agents of persecution she referred to, I am of the view that there is no prospective risk for the appellant from federal police officers or cartel members in the designated locations. [45] As for the ex-husband, the RPD concluded that he is not a prospective risk for the appellant as the brief duration of their relationship, their separation as of XXXX 2018, and the fact that he has instigated the divorce proceedings do not suggest motivation to find her. [46] Counsel argues that her ex-husband is clearly interested in finding her, as demonstrated by the legal issues in Canada. I disagree and consider the RPD's analysis to be correct. The RPD's analysis regarding the ability to find someone using the Federal Electoral Institute (IFE) site is also correct. The documentary evidence shows that there is no evidence on whether the police, government authorities or individuals can use the voter identification card to access information in the computer system in order to locate an individual within Mexico.5 [47] Lastly, counsel argues that the ex-husband's career as a lawyer makes it easier for him to bribe the Mexican authorities to track her. Nothing in the evidence indicates that this argument, which is speculative, is well founded. [48] In closing, the RPD analyzed the second criterion, namely the objective reasonableness of the IFA. It concluded that the appellant is educated and has held many jobs that would enable her to resettle, find employment and provide for her needs in Yucatan or Campeche. Counsel argues that the RPD erred in failing to consider the appellant's XXXX health profile in its determination of the reasonableness of the proposed cities. The RPD did consider the appellant's XXXX health profile when it stated that she could have access to medical services and XXXX in her country. This is supported by the documentary evidence. Tab 5.2 of the National Documentation Package on Mexico6 reports that 31 Justice Centres for Women have been established in a federal-statal collaboration. They offer legal, medical and psychological assistance and redirect women to emergency homes in case of necessity. I am of the opinion that the RPD's analysis of the second criterion is correct. [49] The appellant's satisfactory explanation regarding the fact that the incident with the federal police officers was not mentioned is insufficient to outweigh the numerous omissions, contradictions and behaviours correctly raised by the RPD. The existence of an IFA is an additional factor, despite the findings regarding the above-cited factors. CONCLUSION [50] I dismiss the appeal and confirm the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Me Richard Sheitoyan Me Richard Sheitoyan March 2, 2021 Date IRB translation Original language: French 1 Subsection 110(4) of the Immigration and Refugee Protection Act. 2 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FC 385. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. 5 SPR-1, Refugee Protection Division (RPD) record, National Documentation Package (NDP) on Mexico, August 30, 2019 (Tab 3.5). Voter identification card (credencial para votar); whether a cardholder must make notification of a change of address; whether it can be used as an identification document; whether the card is punched ... MEXI04925.E, Immigration and Refugee Board of Canada. August 8, 2014, page 5. 6 SPR-1, RPD record, NDP on Mexico (August 30, 2019), Tab 5.2: Mexico. Social Institutions and Gender Index 2019. Organisation for Economic Co-operation and Development, December 7, 2018. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-25846 RAD.25.02 (January 2020) Disponible en français 11 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