VB9-01726

RAD File / Dossier de la SAR : VB9-01726 VB9-01727 / VB9-01728 / VB9-01729 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 XXXXXXXX XXXX XXXX Personnes en cause XXXX XXXX XXXX XXXX Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision December 6, 2019 Date de la décision Panel John Helis Tribunal Counsel for the persons who are the subject of the appeal N/A Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX 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), XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX XXXX (the associate Appellants), citizens of Mexico, appeal a decision of the Refugee Protection Division (RPD), dated February 1, 2019, rejecting their claims for refugee protection. [2] The Appellants ask that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own determination that they are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be referred back to a different panel of the RPD for redetermination.1 DETERMINATION [3] The appeal is dismissed. I confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection.2 SUMMARY OF THE FACTS [4] The Appellants are a family of four from Mexico. They comprise the 47-year-old principal Appellant, his 41 year-old wife, and their two minor sons. [5] The Appellants' problems allegedly began on XXXX XXXX, 2017, when the female Appellant witnessed a shooting while making a delivery for their family-owned XXXX in Celaya. She alleges that after the shooting the perpetrator approached her while she was sitting in her parked vehicle, put a gun to her head, and threatened to kill her family if she told anybody about the shooting. [6] The principal Appellant claims that his wife was running the business on her own at the time of the incident while he was vacating in Canada. The principal Appellant returned to Mexico after the incident, and the family left for Canada to make their claims for refugee protection. THE RPD DECISION [7] The RPD found that the Appellants' allegations did not display a nexus to a Convention ground under section 96 of the Immigration and Refugee Protection Act (IRPA), and therefore only analyzed their claims under section 97. [8] The RPD found that the Appellants were not credible in its individualized risk assessment under section 97 of the IRPA, and it denied their claims because of a number of inconsistencies in their evidence and omissions from their Basis of Claim forms (BOC). Specifically, the RPD found that the Appellants had not credibly established that the shooter knew their identities, that they received threatening telephone calls following the shooting, that the threatening telephone calls allegedly received by the principal Appellant's parents are related to the shooting incident, and that the shooter is a member of the Cartel Jalisco Nueva Generacion. NEW EVIDENCE [9] The Appellants submit the following as new evidence in this appeal: a. An August 18, 2017, online news article in Sala de Prensa, entitled "Used Car Salesman Executed in Real Valley." b. A June 3, 2017, online news article in El Universal, entitled "CJNG: the great winner of the war against narco." c. A July 22, 2017, online news article in La Jornada e linea, entitled "The Cartel Jalisco Nueva Generacion Will Dispute the Control of the Capital." d. A July 22, 2017 news article in Televisa entitled "Map of CJNG's territorial expansion is revealed." e. A March 30, 2018, report from Investigation and Analysis of Organized Crime, entitled "Jalisco Cartel New Generation (CJNG)". f. A July 3, 2018 report from the United States Congressional Research Service, entitled "Report on Mexico: Organized Crime and Drug Trafficking Organizations". g. The death certificate of the shooting victim. Is the new evidence admissible? [10] New evidence is only admissible before the RAD if it arose after the rejection of the claim, if it was not reasonably available, or if the Appellant could not have reasonably been expected in the circumstances to have presented the evidence at the time of the rejection of the claim.3 In addition to these legislative requirements, under the Federal Court of Appeal decisions in Singh and Raza, admissibility is limited to evidence that is relevant, new, and credible.4 [11] The four news articles are inadmissible because they do not meet the legislative requirements. All four articles predate the rejection of the claim on February 1, 2019. The Appellants' submission on the question of the admissibility of the new evidence is limited to the assertion that it "meets the requirements in subsection 110(4) of the IRPA, which, were not available to us when our refugee protection claim were heard." The Appellants did not explain why online news articles were not available to them prior to the rejection of their claims, and I cannot find a reason in my independent assessment of the record. Nor can I conclude that the Appellants could not have reasonably expected to present this evidence at the time of the RPD hearing given that the articles address the shooting, which is the central aspect of their claims, as well as the influence of the Cartel Jalisco Nueva Generacion, which they allege was responsible for the shooting. [12] The two reports from the Investigation and Analysis of Organized Crime and the United States Congressional Research Service are not new evidence as they are included in the National Documentation Package (NDP). If these reports were relevant to the claims, I would consider them by virtue of the fact that they are part of the NDP. However, as will be outlined below, the evidence does not establish that the shooting was by the Cartel Jalisco Nueva Generacion, or that the Appellants are being pursued by this cartel. [13] The death certificate of the shooting victim does not meet the legislative or common law requirements for admissibility. According to this document the death was registered on XXXX XXXX, 2018, in XXXX XXXX, Celaya, Guanajuato. A second date, XXXX XXXX, 2019, is also listed at the bottom of the document. Without a submission from the Appellants on the significance of the second date I cannot assume that the document postdates the RPD decision. Since the death occurred on XXXX XXXX, 2017, and according to the document was registered the following day in the civil registry, I find, on a balance of probabilities, that the second date records when the Appellants obtained a copy of the document. The evidence does not support a finding that the death certificate was not reasonably available to the Appellants prior to the rejection of their claims, or that they could not have reasonably been expected to have presented it at the time of the rejection given the centrality of the shooting to their claims. Moreover, the death certificate does not meet the newness requirement from Singh and Raza, as the death from the shooting was fully established by the Appellants' oral testimony. While the RPD based its negative determination on the Appellants' credibility, it did not reject their evidence that a shooting and death occurred. Accordingly, the death certificate is inadmissible. Request for a hearing before the RAD [14] The Appellants' request for a hearing before the RAD is denied. Hearings before the RAD are limited to circumstances when new evidence which is admissible in the appeal raises a serious issue with respect to the Appellants' credibility, that is central to the decision, and if accepted, would justify allowing or rejecting the refugee protection claim.5 The legislative requirements for a hearing before the RAD have not been met since the new evidence is inadmissible. STANDARD OF REVIEW [15] The standard of correctness applies to this appeal as set out by the Federal Court of Appeal in Huruglica.6 This requires an independent assessment of the refugee claim to determine whether the RPD was correct in its findings and determinations. While deference can be afforded to the RPD on specific issues when it enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, such an advantage does not arise in the present case. ANALYSIS [16] I agree with the RPD that the Appellants' allegations do not display a ground of persecution under section 96 of the IRPA, and that they are not at risk of harm under section 97 for the reasons outlined below. I reached this determination after conducting an independent review of the entire record, including listening to the recording of the proceeding before the RPD, and considering the Appellants' arguments. Do the Appellants' allegations display a ground of persecution under s. 96 of the IRPA? [17] The Appellants did not expressly challenge the RPD's conclusion that their allegations do not display a ground of persecution under section 96 of the IRPA in their memorandum. I am satisfied that the RPD was correct based on my independent assessment of the record. The Appellants' allegations that they are at risk of harm because the female Appellant witnessed a shooting, if correct, would make them victims of criminality, which does not have a nexus to a Convention ground. It is well established in the jurisprudence that "victims of crimes are not a social group as defined in the Convention."7 The Appellants did not show that they have a nexus to any other Convention ground despite extensive questioning by the RPD member during the hearing. Since the Appellants have not established that there is a serious possibility that they would be persecuted in Mexico, they are not Convention Refugees pursuant to section 96 of the IRPA. Are the Appellants' at risk of harm under s. 97 of the IRPA? [18] Regardless of whether the female Appellant actually observed a shooting on XXXX XXXX, 2017, as she alleges, I am not satisfied, on a balance of probabilities, that the Appellants are at risk of harm in Mexico. The evidence does not establish that the shooter is aware of the Appellants' identities, as the female Appellant was not credible in her testimony on this issue. Nor does the evidence establish a connection between the shootings and the threatening calls allegedly received by the principal Appellant's mother, or with the Jalisco cartel. Is the shooter aware of the Appellants' identities? [19] I agree with the RPD that the female Appellant's testimony regarding the shooter's knowledge of her identity is not credible. The female Appellant confirmed in oral testimony that she did not recognize the shooter, that there were no visible markings on her vehicle from which the shooter could identify her XXXX business, and that she was parked several blocks away from her business when she witnessed the shooting. Despite this evidence, the female Appellant insisted during her testimony that the shooter was aware of her identity because he threatened her at gunpoint after telling her that she has two children and a XXXX business. Such specific knowledge by the shooter of her identity is not included in her sworn BOC, in which she merely states that he threatened to kill her family if she spoke about the incident. [20] The female Appellant further departed from her BOC by testifying that she began receiving several threatening telephone calls approximately 4 - 5 days after the incident, in which the caller informed her that he was aware of her location and warned that she should not speak about the incident. There is no mention of such threatening calls in Appellants' BOC forms. The female Appellant only mentioned these alleged calls in testimony after being questioned by the RPD member on whether she has had contact with the perpetrator since the incident, which makes her testimony appear to be evolving in nature. The female Appellant's description of these calls also lacked in important details such the specific nature of the threats, the number of calls she received, and exact date that she began receiving the calls. [21] The female Appellant could not provide an explanation for these important omissions from her BOC when questioned by the RPD panel, and merely claimed that it "slipped her mind," and that she instead focused on other details. [22] I do not accept the Appellants' arguments that the RPD failed to consider their explanations for these omissions from the BOC, that their explanations were plausible within the scope of their refugee claim against Mexico, or that the focus of the panel was on secondary inconsistencies. The allegation that the shooter mentioned specific information about the Appellants' identities prior to making his threats is an important element in determining the present or prospective risk of harm in an individualized risk assessment under section 97 of the IRPA.8 Moreover, the subsequent alleged telephone threats would help establish that the perpetrator has both the means and the motivation to pursue the Appellants. There can only be a serious possibility of harm if the perpetrator has both the "means and the motivation" to locate the Appellants.9 The RPD was correct to make an adverse credibility finding based on the omission of these significant facts from the Appellants' BOC forms.10 [23] The female Appellant's testimony regarding the shooter's knowledge of her identity is therefore not credible, and the evidence does not establish, on a balance of probabilities, that the shooter was aware of her identity. Is there a connection between the shooting and incidents of the principal Appellant's mother? [24] Nor does the evidence establish a connection between the shooting and the alleged incidents experienced by the principal Appellant's mother. The principal Appellant's mother claims to have received several threatening telephone calls beginning in XXXX 2017, when callers claimed to be holding her daughter, "XXXX." She hung up since she does not have a daughter, and does not know anybody named XXXX. She received more calls in XXXX 2018, in which the caller stated, "we've found you now, you fucking old bag." In XXXX 2018 she also witnessed a white pick-up truck drive by her home with a man travelling in the trailer who was carrying a long gun while looking at her house. On XXXX XXXX, 2018, she received a telephone call in which the caller claimed to have her children, and demanded ransom money. As a result of these incidents, she was diagnosed with depression and anxiety. [25] While the principal Appellant's mother reported these incidents to the police, and informed them that her problems began several months after her daughter-in-law witnessed the shooting, she testified before the RPD that she could not specifically draw a connection between the shooting witnessed by the female Appellant and the incidents which she personally experienced. Indeed, she confirmed that the pick-up truck that drove by her home was white, contrary to the black truck which her daughter-in-law witnessed in the shooting. Nor did the callers mention the Appellants' name or their XXXX business. [26] With such limited evidence, I cannot conclude, on a balance of probabilities, that there is a connection between the shooting witnessed by the female Appellant and the incidents experienced by her mother-in-law. Therefore, these incidents do not display that the shooter was aware of the Appellants' identities or that they were being pursued after the shooting. Are the Appellants at risk of harm from the Cartel Jalisco Nueva Generacion? [27] Lastly, the evidence does not support the Appellants' belief that the shooting was by the Jalisco cartel, or that they are at risk from this cartel. There is no mention of a cartel in the Appellants' BOC forms. The female Appellant confirmed in her testimony that the perpetrator did not identify with the cartel at the shooting incident, or even during the alleged threatening telephone calls which she received. Instead, the Appellants believe that the perpetrator of the shooting is associated with the Jalisco cartel because the callers that threatened her mother-in-law expressly identified with that group. The Appellant's mother-in-law did not mention a cartel in her police report. She testified that she chose to withhold this information because she feared that the police were in collusion with the cartel. [28] Even if I accept that the threatening calls to the principal Appellant's mother were from the Jalisco cartel, I still cannot find, on a balance of probabilities, that the Appellants are at risk of harm from this cartel since the evidence does not establish a connection to the shooting witnessed by the female Appellant. Was there a breach of natural justice or procedural fairness? [29] The Appellants argue that the RPD must "remain sensitive to the applicant's age, nerves, etc.," but did not specifically explain how the panel failed to display this type of sensitivity. They similarly assert that the "panel failed to observe a principle of natural justice, procedural fairness or other procedures that he [sic] was required by law to observe," without further elaboration. I have not identified any breaches of natural justice or procedural fairness in my independent assessment of the record, and therefore find their arguments without merit. CONCLUSION [30] The Appellants have not established a serious possibility that they will be persecuted, or that they will face, on a balance of probabilities, a risk to their lives, torture, cruel and unusual treatment or punishment in Mexico. The evidence does not establish that the shooter is aware of the Appellants' identities, a connection between the shooting witnessed by the female Appellant and the incidents allegedly experienced by the principal Appellant's mother, or with the Jalisco cartel. [31] Since the claims by the minor Appellants are based entirely upon the allegations of the adult female Appellant, there is no basis to determine that their likelihood of persecution or risk of harm differs from the adult Appellants. [32] I therefore dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection.11 (signed) "John Helis" John Helis December 6, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 111(1)(b) & 111(1)(c) [IRPA]. 2 Ibid., s. 111(1)(a). 3 Ibid., s. 110(4). 4 Raza v. Canada (Citizenship and Immigration), 2007 FCA 385 at para. 13; Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96. 5 IRPA s. 110(6); Zhou v. Canada (Citizenship and Immigration), 2015 FCA 911. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 7 Lozandier v. Canada (Citizenship and Immigration), 2009 FC 770 at para. 15; Rizkallah v. Canada (Minister of Employment and Immigration) (1992), 156 N.R. 1 (F.C.A.). 8 Prophète v. Canada (Citizenship and Immigration), 2009 FCA 31 at para. 7. Citing from Sanchez v. Canada (Minister of Citizenship and Immigration), 2007 FCA 99 at para. 15. 9 Nimako v. Canada (Citizenship and Immigration), 2013 FC 540 at para. 7; Mayorga Gonzalez v. Canada (Citizenship and Immigration), 2012 FC 987 at para. 35. 10 Bakare, Abeni v.M.E.I. (F.C.T.D., no. IMM- 1603-93), Reed, January 19, 1994. 11 IRPA s. 111(1)(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-01726 VB9-01727 / VB9-01728 / VB9-01729 RAD.25.02 (April 04, 2019) Disponible en français 9 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 (April 04, 2019) Disponible en français