MB8-27867

RAD File No. / Nº de dossier de la SAR : MB8-27867 MB8-27868 / MB8-27869 / MB8-27870 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 XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision February 4, 2020 Date de la décision Panel Me Charles Gauthier Tribunal Counsel for the persons who are the subject of the appeal Me Claudia Aceituno 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); and XXXX XXXX XXXX XXXX, XXXX XXXX XXXX, XXXX XXXX XXXX (the associate appellants), citizens of Mexico, are appealing against a Refugee Protection Division (RPD) decision rendered on November 19, 2018, rejecting their refugee protection claim. [2] The principal appellant fears the Caballeros Tempranillos [Knights Templar] and their leader "El Cenizo" because the principal appellant allegedly refused to comply with this cartel, which controls the police services in the Michoacan region. He allegedly tried to report this situation to his superiors and that is when his problems began. Determinative issue [3] The determinative issue before the RPD was credibility. The RPD found that the principal appellant was not credible because he claimed that he feared the Knights Templar and their leader "El Cenizo"; however, the RPD concluded that the documentary evidence did not establish that claim. Determination [4] The Refugee Appeal Division (RAD) sets aside the determination and refers the matter to the RPD for re-determination by a differently constituted panel. The appeal is allowed. Determinative issue before the Refugee Appeal Division [5] The determinative issue before the RAD is procedural fairness. BACKGROUND [6] The principal appellant worked as a XXXX XXXX in the rural region of XXXX, in the state of Michoacan, from XXXX 2014 until XXXX 2016. He alleged that on XXXX XXXX XXXX 2016, he was severely beaten because he refused to comply with the Knights Templar. Specifically, he refused to comply with their leader at the time, Ignacio Andrade Renteria, nicknamed "El Cenizo," and he reported the situation to his superiors. [7] After he was beaten, the principal appellant was left for dead. He was allegedly treated by a doctor who then helped him leave the clinic and seek refuge with one of the doctor's acquaintances. The doctor's son was allegedly assassinated in his apartment approximately XXXX days after the doctor treated the principal appellant. The principal appellant stated that the doctor told him that this was allegedly an act of retaliation because the doctor had helped him. [8] The appellants then allegedly sought refuge with family members and received help from a friend, a travel agent, who helped them leave Mexico for Canada. The travel agent was allegedly murdered on XXXX XXXX XXXX 2018. Although it happened XXXX months after they left for Canada, the appellants believe that this was connected to the fact that the travel agent helped them. NEW EVIDENCE [9] Pursuant to subsection 110(4) of the Immigration and Refugee Protection Act (IRPA), the appellants are only allowed to present new evidence on appeal that "arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection." [10] In this case, the appellants submitted an electronic news article, dated February 6, 2016,1 making reference to "El Cenizo's" arrest in February 2016. Given that this article arose before the claim was rejected, that the matter of identifying the agent of persecution "El Cenizo" is at the basis of the principal appellant's claim, and that this article was available at the time of the hearing, it is not admissible. ANALYSIS Standard of review [11] The role of the RAD is to review RPD determinations by applying the correctness standard of review. It must conduct its own analysis of the record in order to determine whether the RPD erred, as submitted by the appellants. Objective evidence [12] After reviewing all of the evidence, listening to the recording of the hearing and the submissions provided by the appellants' counsel, the RAD concludes that the RPD erred in law and committed a flagrant breach of procedural fairness through its behaviour during the hearing on October 31, 2018. From the beginning of the hearing, the member was questioning the appellants' story based on the fact that there is no information about the Knights Templar in the National Documentation Package (NDP), which is false. The NDP that is applicable to this case at the hearing is the one that was updated on September 28, 2018. The articles regarding drug trafficking organizations found in document 7.22 of the NDP make reference to the "Knights Templar," stating that they operate in the Michoacan and Guerrero regions. The document also reports that this group is being fragmented because its forces are moving to other cartels. Topographic maps of Mexico show that the presence of "Los Caballeros Templarios" is mainly in southern Michoacan, but they are also present in the states of Jalisco, Mexico, Guanajuato, and Guerrero, according to the NDP submitted as evidence during the hearing on October 31, 2018. If the NDP is binding on the appellants, the same must be said for the RPD. The RPD erred in this matter. [13] Furthermore, the RPD questioned the fact that the leader, "El Cenizo," existed. Once again, the RPD ignored the documentation provided by the appellants to support their claim. Documents P-5A3 and P-64 report on gatherings, as well as the cartels under "El Cenizo's" influence. The RPD did not address these documents and failed to ask the principal appellant questions about the contents of this document, as well as how it relates to him. Internal flight alternative [14] With regard to an internal flight alternative (IFA), from the outset, the RPD member asked the principal appellant: [translation] "Sir, do you think that if you were to return to Mexico, all of the cartels would band together to go after you?" After the principal appellant stated that he had already been found, the member replied: "Naturally, you don't have that note." It approached this IFA prong by simply conducting an overview of the prongs, without giving the principal appellant the opportunity to provide explanations. The responses were immediately challenged, making it appear as though the decision was made in advance. The RPD's decision was flawed; one portion of the evidence was not taken into consideration; the RPD drew a negative inference; however, the appellants did not have the opportunity to completely present their case because of the way that the hearing proceeded due to the member's conduct. Refugee Appeal Division's powers [15] The RAD's powers in terms of proceeding with the analysis of the appeal are set out in section 111 of the IRPA. According to this section, the RAD is able to confirm the RPD determination, set aside the determination, and substitute it with the determination that should have been made or refer the matter to the RPD for redetermination, as directed. [16] To substitute the determination, the RAD must be satisfied that the factors regarding the refugee protection claim have met the required standard of proof, which I am not. Credibility and the IFA must be assessed based on the evidence. This includes the objective evidence, the evidence provided by the appellants, as well as the analysis of the different IFA prongs, which the RPD failed to do. Given that the RPD lacked procedural fairness and that I am unable to substitute the determination without holding a new hearing, I must refer the matter to the RPD for re-determination before a differently constituted panel. CONCLUSION [17] The appeal is allowed. Pursuant to paragraph 111(1)(c) of the IRPA, the RAD refers the matter to a differently constituted panel of the RPD. Charles Gauthier Me Charles Gauthier February 4, 2020 Date IRB translation Original language: French 1 Appellant record, newspaper article: "El Cenizo" leader of Los Caballeros Templarios arrested in Guerrero, February 6, 2016. 2 National Documentation Package on Mexico, September 28, 2018, Tab 7.2: Mexico: Organized Crime and Drug Trafficking Organizations. United States. Congressional Research Service. July 3, 2018. 3 Refugee Protection Division (RPD) record, Document P-5A: Silvano is present at meeting in Tepalcatepec, November 9, 2016. 4 RPD record, Document P-6: Police of Michoacan operates with hired gunmen from Chanda in Apatzingan, August 24, 2016. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / Nº de dossier de la SAR : MB8-27867 MB8-27868 / MB8-27869 / MB8-27870 RAD.25.02 (April 4, 2019) 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 (April 4, 2019) Disponible en français