MC0-05714

RAD File No. / No de dossier de la SAR : MC0-05714 MC0-05715 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 Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision January 12, 2021 Date de la décision Panel Me Charles Gauthier Tribunal Counsel for the persons who are the subject of the appeal Me Julio Cesar Tulena Salom Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX (the principal appellant) and XXXX XXXX XXXX XXXX (the associate appellant) are citizens of Mexico. They are appealing the decision of the Refugee Protection Division (RPD) rejecting their refugee protection claim because they failed to establish a prospective risk that would allow them to obtain Canada's protection. According to the RPD, the appellants were never directly threatened and the passage of time has shown that the agent of risk never did anything to demonstrate that he was planning on following through with his threat. Summary of the relevant facts [2] The appellants are the eldest in a family consisting of their mother and her nine children, including the appellants. When the appellants left Mexico, in XXXXandXXXX XXXX 2019, they all lived in the same place, except for their father, who was imprisoned for the murder of a police officer that occurred in XXXX 2015. That event is the foundation of the appellants' refugee protection claim. The appellants claim that their father was falsely accused of murdering a police officer on XXXX XXXX XXXX 2015. Their father was hit by two stray bullets, one in the head, the other in his abdomen. He was transferred from the hospital to a correctional facility. He has been in prison ever since. [3] On XXXX XXXX XXXX 2015, and XXXX XXXX XXXX 2015, the brother of the murdered police officer allegedly went to see the appellants' father and made threats about avenging his brother's death. The threat on XXXX XXXX XXXX 2015, specified that this would be by going after his family. Nothing happened between 2015 and XXXX XXXX XXXX 2019, when the appellants' father allegedly received another visit from the dead police officer's brother. He allegedly threatened the appellants' father, telling him that he had not forgotten him, despite the time that had gone by and that he was going to do everything he could to find his children and kill them. The next day, the appellants' father shared this information with his wife, who then shared it with the appellants. On the day of the hearing, all of the other family members lived in the same residence. The appellants spoke to their mother the day before the hearing and she did not inform them of any threats or information about the dead police officer's brother looking for them or contacting her. Refugee Protection Division decision [4] The RPD rejected the appellants' refugee protection claim because it was of the opinion that despite their frank and credible testimonies, they failed to meet their burden of establishing, on a balance of probabilities, a prospective risk that would prevent them from returning to Mexico. There are two reasons to support the decision. The first is that the appellants were not directly threatened by the agent of risk, which led the RPD to conclude that the only goal of the threats made to their father, was to make him afraid for his family. The second is that time passed without any incident, which demonstrates that the threats were not serious and that the dead police officer's brother never intended to follow through with his threats. The appellants' position [5] The appellants claim that the RPD erred in maintaining that the fact that the appellants did not receive direct threats from the agent of risk demonstrated that these threats were not serious, and that its conclusion is unreasonable, as this constitutes speculation by the RPD. They add that the RPD erred in assessing the facts by concluding that the passage of time demonstrated that the threats were not serious, even though the RPD accepted the appellants' testimonies. [6] Their memorandum also contains general arguments related to credibility, a breach of procedural fairness, a microscopic analysis of the evidence and a dismissal of credibility for a testimony that was clear, accurate and free of intent to mislead the panel. Determinative issue [7] The determinative issue before both the RPD and the Refugee Appeal Division (RAD) is the lack of prospective risk. DETERMINATION [8] Having carried out my own analysis after reviewing the RPD record, the RAD record and listening to the hearing recording, I dismiss the appeal. The onus is on refugee protection claimants to prove on a balance of probabilities that they have reasons to fear for their safety. In this case, the passage of time, the lack of evidence demonstrating that the agent of risk would look for the appellants' family and the fact that the appellants' mother and her seven other children never moved following the death of the police officer undermine the seriousness of the threats made in XXXX 2019. Is it likely that the agent of risk would go after the appellants' father's family? Probably not. ANALYSIS Standard of review [9] My role is to examine all of the evidence and determine whether the RPD's decision was correct1 with regard to the grounds raised by the appellants.2 Analytical framework [10] The appellants fear the brother of a police officer who was allegedly killed by their father. The brother wants to go after the father's family to avenge his brother's death. As this is not a case with a nexus to Convention grounds, the claim is being analyzed under subsection 97(1) of the Immigration and Refugee Protection Act3 (IRPA). Lack of direct threats [11] The RPD concluded that the threats the appellants' father received on XXXX XXXX XXXX 2019, did not directly target the appellants and that, as a result, this means that if the agent of risk [translation] "had really wanted to go after the claimants, the panel is of the opinion, logically, that he would have sought to directly threaten the claimants and not just their father, who is in a prison in Chiapas." The RPD goes on to conclude that: [translation] "Given the lack of any direct threat against the claimants, the panel concludes that, on a balance of probabilities, the brother of the murdered police officer never really wanted to go after the claimants." [12] The appellants submit that the RPD erred in holding that the fact that the appellants did not receive direct threats from the agent of risk demonstrated that these threats were not serious, and that its conclusion is unreasonable, as this constitutes speculation by the RPD. [13] In my opinion, the RPD's reasoning is not logical. The threats made starting in 2015 did not have to be direct in order to be serious. A threat made through someone else can still be carried out. It would have been completely possible for the agent of risk to make a threat to the appellants' father in 2015 and then go after his family without any other warning. The RPD's conclusion regarding the lack of a direct threat is incorrect, but it is not determinative. Passage of time without incident and safety of family members in Mexico [14] The appellants submit that the RPD erred in assessing the facts by concluding that the passage of time demonstrated that the threats were not serious, even though the RPD accepted their testimonies. [15] The appellants testified that they did not know who the agent of risk was. They testified that between XXXX 2015 and their departure, they all lived in the same house with their mother and siblings. They testified that between XXXX XXXX XXXX 2019, and their respective departures on XXXX XXXX XXXX 2019, and XXXX XXXX XXXX 2019, they did not receive any threats or experience anything that led them to think that the agent of risk was trying to go after family members. They testified that they did not move to try to protect themselves. They testified that they spoke to their mother the day before the hearing held on XXXX XXXX XXXX 2020, and that nothing had happened with regard to the agent of risk since they had left. [16] The determinative issue in this case is whether there is a prospective risk should the appellants return to Mexico. All of the facts are linked together to determine if the threat is serious. Both the passage of time and the fact that the appellants' family members did not move and have not been bothered-not since they left Mexico, as of the day of the hearing or at the time of this appeal-establishes the RPD's conclusion that the threats made by the dead police officer's brother were not serious. This conclusion by the RPD, combined with the following conclusion, leads me to conclude that it is correct. [17] The other conclusion, related to the safety of the appellants' family members in Mexico, notes that [translation] "the fact that the eight direct family members of the claimants still live at the same address in Chiapas and nothing has happened to them since the first threat in XXXX 2015 until now demonstrates yet again to the panel that there is no prospective risk for the claimants should they return to Mexico." The written account in the Basis of Claim Form establishes that the agent of risk threatened all of the family members. Why would the appellants be in any more danger than their mother or siblings? Although the appellants state that it is because they are the eldest in the family, this is not established in the evidence. There is no tangible evidence to support that statement. The RPD's conclusion is correct. The appellants' other arguments [18] The appellants' memorandum provides arguments regarding credibility that are not connected to this record, which confirms that the RPD found the appellants to be credible. They do not have to be analyzed due to their lack of relevance. [19] With regard to the argument about a breach of procedural fairness, the appellants do not explain how the RPD erred in this case. The appellants did not submit evidence to demonstrate that the RPD was not independent and impartial. As held in Mugesera,4 failing any evidence to the contrary, the decision-maker is presumed to be impartial. I am of the opinion that the RPD did not err. CONCLUSION [20] The appellants failed to establish that there is a serious possibility of persecution on one of the five Convention grounds. Furthermore, they failed to demonstrate that, on a balance of probabilities, they would be personally subjected to a danger of torture, a risk to their lives or a risk of cruel and unusual treatment or punishment if they were to return to Mexico. [21] I dismiss the appeal and confirm the determination of the RPD that the appellants are not Convention refugees or persons in need of protection. (signed) Me Charles Gauthier Me Charles Gauthier January 12, 2021 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Subparagraph 3 (3)(g)(ii) of the Refugee Appeal Division Rules. 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 4 Mugesera v. Canada (Minister of Citizenship and Immigration) 2005 SCC 39, [2005] 2 SCR 91. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-05714 MC0-05715 RAD.25.02 (January 2020) Disponible en français 6 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