VC1-03000

RAD File / Dossier de la SAR : VC1-03000 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 Calgary, AB Appel instruit / entendu à Date of decision November 10, 2021 Date de la décision Panel Derek Vermette Tribunal Counsel for the person who is the subject of the appeal N/A 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 this appeal by XXXX XXXX XXXX XXXX (the Appellant), a citizen of Mexico, of a Refugee Protection Division (RPD) decision that denied his claim for refugee protection. [2] The Appellant fled Mexico because he fears the Jalisco New Generation Cartel (CJNG) after he refused their extortion demands. [3] The RPD denied the Appellant's claim because it found that the Appellant had an Internal Flight Alternative (IFA) - a safe location that is reasonable to locate to - in Merida, Yucatan. [4] The Appellant argues that the RPD erred in its assessment that he would be safe in Merida. He submits that the CJNG is motivated to locate him, and that it has a presence in Merida. [5] It is my decision that the RPD correctly decided this claim. The Appellant has an IFA in Merida. The evidence does not support that the CJNG has a presence in Merida such that it poses a risk of harm to the Appellant if he were to relocate there, and the Appellant has not demonstrated that it would be unreasonable for him to relocate there. DECISION [6] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention1 refugee nor a person in need of protection. BACKGROUND The Appellant's allegations [7] The following is a summary of the Appellant's allegations. [8] The Appellant started a business in XXXX, in the state of Guerrero in XXXX 2012. In XXXX 2016, he began receiving phone calls from the CJNG and they made extortion demands. [9] The Appellant paid the demand but fell behind two payments. On XXXX XXXX XXXX 2016, the CJNG locked up two employees and vandalized his business. The Appellant closed his business. [10] The Appellant moved back to XXXX, in the state of Morelos, opening the same business there in XXXX 2017. He hired his cousin and employees to work at the business, while he worked as a XXXX and XXXX at a XXXX. [11] In XXXX 2017, the CJNG approached the Appellant and told him to launder their money through his store. The Appellant agreed, and then went to hide at his brother's house in Mexico City. [12] On XXXX XXXX, 2017, the CJNG damaged the store. The Appellant filed a police report but did not name the CJNG. [13] The Appellant went to XXXX to stay with a friend. The Appellant's cousin informed the police that it was the CJNG who had damaged the store, and then he travelled to another city. The Appellant abandoned his store in XXXX. [14] In XXXX, the Appellant became scared after seeing one of the CJNG members on the beach, and he fled to Canada, arriving on XXXX XXXX, 2017. [15] The Appellant's cousin returned to XXXX in XXXX 2019, and was assassinated by the CJNG after being mistaken for the Appellant. The Appellant filed for refugee protection after his cousin's murder. The RPD decision [16] The RPD found that the Appellant's claim involved criminality and his fear of the CJNG, and that he had not established a nexus to one of the Convention grounds under section 96 of the Immigration and Refugee Protection Act (IRPA).2 Accordingly, the RPD assessed the Appellant's claim under section 97(1) of the IRPA. [17] The RPD accepted that the Appellant owned a business in XXXX and then in XXXX; that he was extorted by the CJNG; that the Appellant's business locations in both XXXX and XXXX were vandalized by members of the CJNG; and that the Appellant's cousin was killed by the CJNG, mistaking him for the Appellant. [18] The RPD found that the Appellant has an IFA in Merida, Yucatan. The RPD decided that, on a balance of probabilities, the Appellant would not be subjected personally to a risk to life, a risk of cruel and unusual treatment or punishment or danger of torture in Merida; and that it would not be objectively unreasonable, in all the circumstances, including those particular to the Appellant, for him to relocate to Merida. [19] The RPD found that the CJNG will not be motivated to pursue the Appellant in Merida, as they believe they have already killed the Appellant rather than his cousin, and because he has been away from Mexico since 2017. [20] The RPD also decided that that the CJNG does not have the ability to track the Appellant in Merida as the CJNG has not established any significant control in Yucatan. [21] The RPD found that it would not be unreasonable for the Appellant to relocate to Merida. It noted that Merida is a safe place, and that the Appellant is relatively young, healthy and speaks Spanish fluently. The RPD also found that the Appellant had experience as a XXXX, XXXX and XXXX. The RPD indicated that the Appellant was resourceful and capable of learning new skills as demonstrated by his work and life experience, and that there was insufficient evidence that his life or safety would be jeopardized by relocating to Merida. NEW EVIDENCE [22] The Appellant has submitted the following documents for me to consider as new evidence for this appeal, as follows:3 Accepted Item 1: An article from BBC news, entitled, "Mexico cartel used explosive drones to attack police", dated April 21 (This article did not indicate the year, so I determined from the internet that the article was published in 2021); Item 2: An article from Mexico News Daily, entitled, "Happy Mother's Day from the Jalisco New Generation Cartel", dated May 11, 2021; Rejected Item 3: An affidavit of the Appellant sworn XXXX XXXX, 2021; Item 4: A letter from XXXX XXXX XXXX XXXX the Appellant's cousin, undated; Item 5: A one-page depiction of two maps showing "Mexican Cartels: Areas of Dominant Influence and Key Areas of Conflict", also indicating "Drug Enforcement Administration (DEA) Current as of April 2015"; Item 6: An article entitled, "The Sinaloa Cartel and the CJNG: the feared drug union that would be taking place outside Mexico"; dated June 16, 2020; Item 7: An article entitled, "Los 29 muertos en Nayarit pertencecían al cártel de Sinaloa y a 'Los Zetas'", dated May 27, 2011 (untranslated); Item 8: An article from the Yucatan times, untitled, and dated November 27, 2020; Item 9: An article from the Free Voice Yucatan, entitled, "The Sinaloa, Gulf and Isthmus Posters would be operating in Yucatan", undated; Item 10: An article from the Washington Post, entitled, "Mexico's Jalisco New Generation Cartel blazes a bloody trail in rise to power", dated July 10, 2020; Item 11: An article from the Yucatan Times, entitled, "Jalisco New Generation Cartel's expansion throughout the world. Part II", dated March 8, 2021; Item 12: An article entitled, "Security is in danger in Yucatan; cartel tends narconexos", dated July 6, 2020; Item 13: An article from laverdadnoticias.com, entitled, "El Observatorio Mexicano sobre las Drogas confirm que el Cartel Jalisco Nueva Generacion no ha cejado en su empeno de abrir una base de operaciones en Yucatan" dated July 6, 2020 (untranslated); and Item 14: An article from Imagen del Golfo, entitled, "Cartel Jalisco Nueva Generacion busca establecerse en Yucatan", dated July 6, 2020 (untranslated). [23] According to section 110(4) of the IRPA, I can only accept evidence that: i. arose after the RPD decision (the RPD hearing took place on March 30, 2021, and the RPD decision was issued on April 13, 2021); ii. was not reasonably available at the time of the decision; or, iii. that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [24] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.4 [25] I am admitting Items 1 and 2 because these articles post-date the RPD decision, and so could not have been presented to the RPD before its decision. The articles are also broadly relevant to the Appellant's argument of the CJNG's presence and power. They contain new information and are credible in terms of the source of information (i.e., news organizations). [26] I am not admitting Items 3 to 14 for the following reasons. Items 3 and 4 either repeat information provided to the RPD, or contain information that could have been presented to the RPD.5 Items 5, 6, 8, 9 10, 11, 12 are either undated, or pre-date the RPD decision, and the Appellant has not provided any explanation for why these documents could not have been presented to the RPD before its decision. Items 7, 13 and 14 have not been translated to English in contravention of Refugee Appeal Division (RAD) Rule 28(1).6 ANALYSIS [27] I find that after correctly giving notice at the RPD hearing that IFA would be an issue, and specifically that the proposed IFA location was Merida,7 the RPD correctly decided that the Appellant has a viable IFA in Merida, and that he is therefore not entitled to refugee protection. IFA: General Principles [28] The Federal Court has explained the general principles for IFA, and has indicated that to determine if a viable IFA exists, the RAD must be satisfied, on a balance of probabilities, that:8 a. the claimant will not be subject to persecution (on a "serious possibility" standard), or a section 97 danger or risk (on a "more likely than not" standard) in the proposed IFA; and b. in all the circumstances, including circumstances particular to the claimant, conditions in the IFA are such that it would not be unreasonable for the claimant to seek refuge there. [29] Both above "prongs" of the test must be satisfied to conclude that a refugee claimant has a viable IFA. The threshold on the second prong of the IFA test is a high one. There must be "actual and concrete evidence" of conditions that would jeopardize the claimant's life and safety in travelling or temporarily relocating to a safe area. Once the potential for an IFA is raised, the claimant bears the onus of establishing it is not viable. First Prong: No risk of harm in Merida [30] As discussed, the RPD found that section 96 of the IRPA does not apply to the Appellant's claim, which is based on criminality, because there is no nexus to a Convention ground. I agree with the RPD, and the Appellant has not provided any arguments as to why this finding is in error. The Appellant's counsel at the RPD hearing conceded that the Appellant was seeking protection under section 97(1) of the IRPA.9 Section 97(1) of the IRPA is the relevant section for consideration, and with respect to the first prong of the IFA test, I find, on a balance of probabilities, that the Appellant will not be subject to a section 97 danger or risk (on a "more likely than not" standard) in the proposed IFA of Merida. [31] The Appellant argues that the RPD erred in its analysis because, according to his new evidence, the CJNG has a presence in Merida, Yucatan, and that the strongest cartel in Merida, Yucatan is the Sinaloa cartel and they have a union with the CJNG. I am not persuaded by the Appellant's arguments for the following reasons. [32] I considered the new evidence submitted by the Appellant that I have accepted. I find these articles are not relevant as the activity described in the articles occurred in places other than the proposed IFA of Merida, Yucatan, and therefore the articles do not establish that the CJNG has a presence in Merida, Yucatan. Item 1 reported that officials believed the CJNG was behind attacks in the western state of Michoacan. Item 2 reported that the CJNG delivered Mother's Day gifts to communities in Guanajuato, Jalisco and Michoacan in the name of their leader to win public support. [33] I considered that Item 1 indicated that, "[The CJNG] has spread from [the CJNG leader's] original power base in the state of Jalisco to have an almost nationwide presence."10 While CJNG may have an "almost" nationwide presence, the weight of evidence supports that they do not have a meaningful presence in the proposed IFA of Merida, in the state of Yucatan. [34] An Insight Crime article of July 8, 2020, from the National Documentation Package (NDP) for Mexico indicates that the CJNG, "... has expanded rapidly, and the CJNG now has some sort of presence in every part of Mexico, except Sinaloa and the Golden Triangle of heroin production", but that, "... the CJNG does not necessarily control every area it is present in."11 [35] The weight of evidence does not support that the CJNG has a meaningful presence in Merida, Yucatan. In the NDP in place at the time of the RPD hearing, there was a document that included a map of cartel involvement in Mexico. The document is entitled, "Mexico: Organized Crime and Drug Trafficking Organizations", updated July 28, 2020.12 On page 5 of that document, there is a map ("Figure 2. Stratfor Cartel Map by Region of Influence (Published in January 2020)") showing areas of cartel influence in Mexico. The state of Yucatan, where the proposed IFA of Merida is located, is shaded a colour that corresponds to cartels other than the CJNG. That document remains in the most recent NDP as of writing this decision.13 [36] An article submitted at the RPD hearing specifically states that, "The report from the UIF [Financial Intelligence Unit of the Secretary of Tax Authorities] over the geographic distribution of the main criminal groups, released last month, does not include the Cartel Jalisco Nueva Generacion CJNG as a group present in Yucatan."14 [37] One article in the RPD Record indicated that the chief of the UIF indicated that the CJNG was one of four cartels in Yucatan.15 However, there is also a reference that the CJNG is in Yucatan for the purpose of basing their operation to coordinate the financing and logistics of the members of the cartel who work in the neighbouring state of Quintana Roo against rivals gangs for the control of drug trafficking in that state.16 In any event, there is no reference to the CJNG being in the proposed IFA of Merida. [38] The Appellant argued that the CJNG cartel has an association with the Sinaloa cartel. However, the map of cartel involvement in Mexico in the document, "Mexico: Organized Crime and Drug Trafficking Organizations", discussed previously, does not indicate that the Sinaloa cartel is in Yucatan either. In addition, a report in the NDP indicates that, "While it is possible the CJNG once maintained an alliance with the Sinaloa Cartel, today, the two are fierce enemies across large parts of Mexico."17 [39] The Appellant argues that the RPD erred in deciding that the CJNG are not motivated to kill him, and he submits that the owners of many small business have closed their businesses and fled the country for fear of revenge. I am not persuaded by this argument for the following reasons. I find the RPD's reasoning correct, and I agree that the CJNG are likely not motivated to search for the Appellant because it is likely that they believe he is not alive. With respect to the Appellant's argument that other business owners may have fled Mexico, I find that the issue in this appeal is whether the Appellant, given his circumstances, has an IFA in Merida, Yucatan. For the reasons discussed in this decision, I have found that the Appellant does have an IFA in Merida. [40] When I reviewed the transcript from the RPD hearing, I noted that the Appellant indicated that the CJNG would know if he returned to Mexico and started living in Merida, because the CJNG has paid the police to track everyone's movements.18 I do not find this argument persuasive. The Federal Court has stated that claimants cannot just claim, without supporting evidence, that they could be found anywhere in Mexico using databases, because of the corruption in their country and the crimes of their agents of persecution.19 [41] I also noted in the transcript from the RPD hearing, that counsel for the Appellant argued that the CJNG had been able to track the Appellant's cousin to Cancun.20 I disagree with this argument for the reasons set out in paragraph 34 of the RPD decision. As the RPD noted, the Appellant's cousin was killed when he returned to XXXX. Second Prong: Relocating to Merida is not unreasonable [42] With respect to the second prong of the IFA test, I find in all the circumstances, including circumstances particular to the Appellant, that conditions in the IFA of Merida are such that it would not be unreasonable for the Appellant to seek refuge there. [43] As indicated, once an IFA is proposed, as the RPD correctly did in this case, the Appellant has the onus of establishing that it is not viable. The threshold is a high one, with the Appellant having to show that there is actual and concrete evidence of conditions that would jeopardize his life and safety in travelling or temporarily relocating to a safe area. In this case, the Appellant has failed to meet that burden. [44] The proposed IFA of Merida is a reasonable location for the Appellant to relocate to in so far as his background will make it easier for him to find employment and support himself in that location. The Appellant has XXXX years of education, speaks Spanish, has work experience in XXXX, as a XXXX and XXXX, and XXXX XXXX.21 At the RPD hearing, the Appellant acknowledged that Merida, "...could be good if I wouldn't have any issues with the cartel."22 [45] While moving to a new location is challenging, the Appellant has not provided me with evidence of any circumstances that rise to the level of constituting actual and concrete evidence of conditions that would jeopardize his life and safety in travelling or temporarily relocating to Merida. CONCLUSION [46] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Derek Vermette Derek Vermette November 10, 2021 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 3 Exhibit P-2, Appellant's Record, pps. 13-55. 4 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96, [2016] 4 FCR 230; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 5 Item 4 is located at Exhibit RPD-1, RPD Record, pps. 90-92. 6 Refugee Appeal Division Rules (RAD Rules), SOR/2012-257, RAD Rule 28(1): "All documents used by a person who is the subject of an appeal in an appeal must be in English or French, or, if in another language, be provided together with an English or French translation and a declaration signed by the translator." 7 RPD Hearing Transcript (March 30, 2021), p. 1, lines 33-35. 8 Olusola v. Canada (Citizenship and Immigration), 2020 FC 799 at paras. 7-9. 9 RPD Hearing Transcript (March 30, 2021), p. 13, lines 47-49. 10 Exhibit P-2, Appellant's Record, Article from BBC news, entitled, "Mexico cartel used explosive drones to attack police", dated April 21, 2021, p. 40. 11 National Documentation Package (NDP) for Mexico (September 30, 2020), item 7.12: ?Jalisco Cartel New Generation (CJNG). InSight Crime. July 8, 2020, at p. 2 of 4. This document remains in the current NDP at Exhibit RAD-1, NDP for Mexico (September 29, 2021), item 7.12: ?Jalisco Cartel New Generation (CJNG). InSight Crime. July 8, 2020. 12 NDP for Mexico (September 30, 2020), item 7.2: ?Mexico: Organized Crime and Drug Trafficking Organizations, United States. Congressional Research Service. July 28, 2020. 13 Exhibit RAD-1, NDP for Mexico (September 29, 2021), item 7.2: ?Mexico: Organized Crime and Drug Trafficking Organizations. United States. Congressional Research Service. July 28, 2020. 14 Exhibit RPD-1, RPD Record, Newspaper Article Headline "Three Narcoffifficking Cartels Coexist'' in Yucatan" By Hernan Casares Camara, October 12, 2020. p. 121. 15 Exhibit RPD-1, RPD Record, "Hit to the Narcotrafficker in the golf of Mexico: the army secured a plane with weapons and 350 Kilos of drugs", December 13, 2020, p. 127. 16 Exhibit RPD-1, RPD Record, p.134 17 NDP for Mexico (September 30, 2020), item 7.12: ?Jalisco Cartel New Generation (CJNG). InSight Crime. July 8, 2020; and Exhibit RAD-1, NDP for Mexico (September 29, 2021), item 7.12: ?Jalisco Cartel New Generation (CJNG). InSight Crime. July 8, 2020. 18 RPD Hearing Transcript (March 30, 2021), p. 11, lines 4-17. 19 Gonzalez Martinez v. Canada (Citizenship and Immigration), 2012 FC 5 at para 14. 20 RPD Hearing Transcript, p. 14, lines 14-18. 21 Exhibit RPD-1, RPD Record, Generic Application Form for Canada and Schedule A Background/Declaration, at pps. 32 to 41. 22 RPD Hearing Transcript (March 30, 2021), p. 13, lines 4-12. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : VC1-03000 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