MC0-04689

RAD File No. / No de dossier de la SAR : MC0-04689 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 May 4, 2021 Date de la décision Panel Me Kristine Plouffe-Malette Tribunal Counsel for the person who is the subject of the appeal Angelica Pantiru 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] The appellant, XXXX XXXX XXXX XXXX, a citizen of Mexico, is appealing the decision of the Refugee Protection Division (RPD) dated January 27, 2020, rejecting his refugee protection claim because he did not give credible testimony and failed to demonstrate, on a balance of probabilities, that he would be subjected personally to a risk if he returned to the country. [2] The appellant was allegedly extorted by members of the Jalisco Nueva Generación (CJNG) cartel from 2015 to 2017, when he moved to another state. He left the country for Canada and filed a refugee protection claim there in 2019. [3] The RPD raised several contradictions and omissions in the appellant's written account for which no satisfactory justification was found, allowing it to conclude that the appellant would not be subjected to a risk if he returned to Mexico. [4] In his memorandum, the appellant raises several grounds of breaches of procedural fairness and contests the RPD's conclusions. Procedural fairness and the prospective risk are the two determinative issues on appeal. [5] For the following reasons, the Refugee Appeal Division (RAD) is of the opinion that the RPD did not breach procedural fairness and that the appellant failed to demonstrate, on a balance of probabilities, that he would face a risk if he returned to Mexico. DETERMINATION [6] The appeal is dismissed. The RPD correctly determined that the appellant is neither a Convention refugee nor a person in need of protection. SCOPE OF THE APPEAL [7] In accordance with the Supreme Court of Canada teachings, issues of procedural fairness are questions of law.1 The Federal Court of Appeal confirmed that while the reviewing exercise of this type of issue is "best reflected in the correctness standard," it is of essential importance to determine whether or not there was a breach of procedural fairness. In doing so, "no standard of review is being applied"2 to issues of procedural fairness. [8] As for the other issues raised in this appeal, in accordance with Huruglica,3 the RAD carried out an independent review of all the evidence, which included listening to the hearing held in this case, and, given that the RPD did not enjoy a real advantage on the issue of credibility, applied the correctness standard. ANALYSIS The Refugee Protection Division did not breach procedural fairness [9] The appellant's counsel told the RPD at the start of the hearing that he had completed his Basis of Claim Form (BOC Form) himself, without counsel or an interpreter. It explained in its decision that it would take this situation into account in order to render its decision. [10] The appellant essentially submits in his memorandum that the RPD did not consider the situation involving the writing of his BOC Form. Specifically, the appellant submits in his memorandum that there was a breach of procedural fairness since he did not have the services of a counsel or a lawyer, or of an interpreter when he completed his BOC Form using Google Translate. He states that he therefore refused to confirm that his BOC Form was complete, true and correct at the start of the hearing as the RPD gave him only about 20 minutes to make amendments to his form, which was not enough time given the stress from the rejection of the claim. He also states that neither he nor his counsel were able to consult his BOC Form or record prior to the hearing since he had provided the original when filing the form. Lastly, he argues that his counsel did not receive the notice to appear. Consequently, he submits, the RPD breached procedural fairness, which undermined its assessment of his credibility. [11] The RAD is of the opinion that the RPD did not breach procedural fairness for the following reasons. [12] The appellant arrived in Canada on XXXX XXXX, 2019. He submitted an initial BOC Form on May 24, 2019, which was completed but not signed. He filed a second BOC Form on June 17, 2019, which was blank, but signed. [13] His counsel submitted a request to change the date and time of the hearing on December 10, 2019, which was rejected on December 17. The appellant's counsel even mentioned it at the hearing before the RPD during her final submissions. [14] Rule 54 of the Refugee Protection Division Rules outlines in detail the procedure to follow for both the application in writing and the oral application to change the date or time of a proceeding. According to subrules (3) and (9), the appellant and his counsel were able to resubmit the application orally at the hearing. If the appellant had wanted the services of an interpreter to make major changes to his BOC Form and if an application for postponement had been presented to the member in this regard at the hearing, the RPD would have had no choice but to evaluate his request. After carefully listening to the hearing, the appellant's counsel did not present a new application to the RPD at the hearing. Not only was the appellant not entitled to postpone his hearing, but he cannot claim that he was surprised or stressed by the rejection of his application that occurred several weeks prior to the hearing, not a few minutes before proceeding. [15] Instead, the recording of the hearing reveals that the member confirmed that the appellant and the interpreter understood, then swore the appellant in before marking the exhibits. At that time, the appellant's counsel stated that she had made a request to the RPD to get a full copy of the appellant's record on December 10, 2019, but did not receive anything. She did not mention the matter of the application to postpone the hearing. She then stated that she did not have the full version of the BOC Form or the immigration documents normally included in the package of the Minister of Immigration. The member then suspended the hearing to make a copy of the record. Counsel confirmed in the recording that she had received this copy from the member, and she went on to state that the appellant wanted to amend his written account. [16] The hearing resumed and it is clear that not only was counsel very familiar with the contents of the record, but that the appellant had prepared the amendments that he wanted to make, since his counsel went on to specify the amendments to be made to the form. Therefore, the appellant's statements that he was under stress and that the member had given him a short timeframe to review his BOC Form and amend it are not satisfactory. The hearing was not suspended for this reason, but rather to make a copy of the record. [17] Once the appellant's counsel had finished presenting the amendments to the appellant's written account, she asked her client if he had more information to share with the panel, other facts or other events. The appellant responded clearly and calmly that he wanted to report three moves: in 2015, 2016 and 2017. This was followed by an exchange between the appellant and his counsel on the exact location of the various residences. His answers were straightforward. [18] Once the appellant completed the amendments, counsel presented the BOC Form to him so it could be acknowledged. The appellant recognized the form and his handwriting, and stated that he remembered completing it in May, not in March as his counsel had suggested, alone and without the assistance of an interpreter or counsel. When asked about his understanding of the form, the appellant confirmed that he did not understand the form given that he used the Google Translate application. When he was asked whether he could confirm that the form was complete, true and correct, he immediately responded yes, specifying that Google's translations are not completely reliable. When asked by the member to confirm whether the main events in support of his refugee protection claim were in the form, once again, the appellant immediately responded yes. [19] Consequently, when the appellant stated that he had refused to confirm his BOC Form at the start of the hearing, this is simply false. He did indeed confirm it on several occasions, specifying that the translation might not always be accurate. What is more, neither the appellant nor his counsel at the hearing made a request to have the BOC Form immediately reinterpreted, as is sometimes the case before the RPD. Without such a request, there cannot be a breach of procedural fairness. [20] Lastly, the appellant argues that his counsel did not receive the notice to appear. While she did not receive it, the appellant did receive the notice and he met with his counsel afterwards in early December, as he mentions in his memorandum of appeal (paragraph 6). Counsel was therefore notified of the hearing in a timely manner, was denied the request to change the date and time of the hearing, but was nevertheless able to prepare the record with the appellant before the hearing was held. [21] Ultimately, for the above reasons, the RAD concludes that there was no breach of procedural fairness. Absence of risk if the appellant returned to Mexico [22] Even if there had been a breach of procedural fairness for the reasons mentioned earlier, which would have undermined the assessment of the appellant's credibility, the RAD is of the opinion that he still would not have demonstrated that he would be subjected, on a balance of probabilities, to a risk if he returned to Mexico. Credibility is therefore not determinative on appeal; only the question of prospective risk will be analyzed here. [23] The RPD concluded that the appellant would not face a personalized risk if he returned to Mexico, even though he would likely face a generalized risk of endemic violence in the country, particularly against business owners. It acknowledged the fact that the appellant and his family members have not received any threats whatsoever since the latest incident in 2017. [24] Any refugee protection claim must be assessed prospectively. The appellant alleges that he would fear for his life if he had to return to the country since he was threatened and extorted on several occasions from 2015 to 2017 by members of the CJNG that he cannot identify. That is the risk identified. [25] The appellant clearly testified that he had not received any type of threat whatsoever since he moved from the city of Léon to the State of Querétaro in XXXX 2017. Moreover, he confirmed that his wife and children remained, and still remain, in the home that he left in XXXX 2017 in the city of Léon, and that they were never bothered. [26] While the RAD assumed that the appellant gave credible testimony, if the members of this cartel did not go after him or his family members from 2017 and 2019, when the documentary evidence suggests the contrary with respect to the modus operandi of cartels,4 there is nothing to suggest that the appellant's agents of risk would attack him if he returned to the country. What is more, the appellant did not state either before the RPD or in his memorandum of appeal that events had occurred after 2017 which he did not mention due to the lack of interpretation of his BOC Form. In light of all the evidence, the RAD is of the opinion that the appellant failed to establish, on a balance of probabilities, that there is still some risk if he were to return to Mexico, as he left his country when he had not been threatened for two years. [27] Lastly, the appellant argues in his memorandum that the RPD erred in its assessment of his risk by failing to consider the documentary evidence on the danger posed by the CJNG and the increase in crime in Mexico. Just because the RPD did not cite the documentary evidence does not mean it did not consider it. Of course, the evidence is clear as to the importance of the CJNG and of endemic crime in the country.5 This does not explain or justify why the members of the CJNG would go after him when the appellant was no longer threatened after he relocated to another state and was able to work there normally for two years before leaving Mexico.6 [28] In conclusion, the appellant failed to demonstrate that he would face a serious possibility of persecution or that he would be subjected personally, on a balance of probabilities, to a danger of torture, to a risk to his life or to a risk of cruel and unusual treatment or punishment if he returned to Mexico. CONCLUSION [29] Pursuant to paragraph 111(1)(a) of the IRPA, the appeal is dismissed for the reasons stated above, and the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection within the meaning of subsection 97(1) of the IRPA is confirmed. (signed) Kristine Plouffe-Malette Me Kristine Plouffe-Malette May 4, 2021 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, at para. 43; Navaratnam v. Canada (Citizenship and Immigration), 2015 FC 274, at para. 32; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. 2 Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, at paras. 54-56, which recalls, in particular, the principles in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817; see also Georges v. Canada (Citizenship and Immigration), 2020 FC 774 and Pardo Quitian v. Canada (Citizenship and Immigration), 2020 FC 846. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 SPR-1, Refugee Protection Division (RPD) record, National Documentation Package (NDP) on Mexico (August 30, 2019), Tab 7.16: The Victimology of Extortions in Mexico, Rice University, James A. Baker III Institute for Public Policy, Gary J. Hale, October 2016. 5 SPR-1, RPD record, NDP on Mexico (August 30, 2019), Tab 7.12: Jalisco Cartel New Generation (CJNG). InSight Crime. May 21, 2019; SPR-1, RPD record, NDP on Mexico (August 30, 2019), Tab 7.18: Criminality, including organized crime; state response, including effectiveness; protection available to victims, including witness protection (2015-July 2017), Immigration and Refugee Board of Canada, August 21, 2017, MEX105951.E. 6 Recording of the RPD hearing held on January 3, 2020, from 1:35 to 1:42. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-04689 RAD.25.02 (January 2020) 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 (January 2020) Disponible en français