TC1-04207

RAD File / Dossier de la SAR : TC1-04207 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 Vancouver, BC Appel instruit / entendu à Date of decision October 13, 2021 Date de la décision Panel Kamal Gill Tribunal Counsel for the person who is the subject of the appeal Rouxanne Irving 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, citizen of Mexico, appeals the decision of the Refugee Protection Division (RPD) dated March 19, 2021, rejecting his claim for refugee protection. BACKGROUND [2] The Appellant fears XXXX XXXX XXXX (XXXX) who the Appellant alleges is a member of the Gulf Cartel. The Appellant's allegations can be summarized as follows. [3] The Appellant alleges that XXXX attempted to recruit him to distribute drugs. The Appellant refused. XXXX again approached the Appellant, but the Appellant refused. This time the Appellant was assaulted. XXXX then went to the Appellant's home and yelled at him. The Appellant reported this incident to the police. [4] Approximately three weeks later, XXXX and his associates ambushed the Appellant on his way home. He was assaulted and sustained injuries to his ribs. The Appellant went to the hospital to receive medical treatment. He then went to his cousin's farm to hideout. He stayed with his cousin until he departed for Canada. [5] The Appellant arrived in Canada on XXXX XXXX XXXX 2019, and on September 18, 2019 he made a claim for refugee protection. His claim for refugee protection was heard on January 11, 2021. On March 19, 2021, the RPD rejected his claim for refugee protection. Credibility was a determinative issue for the RPD. Role of the Refugee Appeal Division (RAD) [6] The RAD conducts its own analysis of the record to decide whether or not the RPD's decision was wrong. The RAD generally does not owe any deference except in rare cases where the RPD held a meaningful advantage in assessing the credibility of oral testimony. The standard applied on this appeal is one of correctness.1 New Evidence and Oral Hearing [7] Although the Appellant stated that new evidence would be submitted to the RAD, no evidence has been tendered. The Appellant has not requested an oral hearing before the RAD. DECISION [8] Pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA),2 I dismiss the Appellant's appeal and confirm the decision of the RPD that the Appellant is not a Convention3 refugee or a person in need of protection. ANALYSIS [9] The RPD found that credibility was the determinative issue. The RPD found that the Appellant failed to credibly establish that he was approached to sell drugs by a member(s) of the Gulf Cartel. Specifically, the RPD did not find it credible that he would change his hours of work to avoid XXXX when he had only met XXXX once; therefore could not have known XXXX routine. The RPD also found that the medical report dated XXXX XXXX, 2019 further undermined his credibility. Although the Appellant's evidence was that he sustained serious injuries on XXXX XXXX, 2019, the report is dated before the incident occurred. The RPD rejected his explanation that the medical report had the incorrect date. Finally, the RPD found that the Appellant failed to establish, at the time he was approached by member(s) of the Gulf Cartel, that the Gulf Cartel had a presence in Chiapas. Therefore, the RPD determined that there is not a serious possibility that he would be persecuted by the Gulf Cartel because he refused to work for them. The RPD also found that the delay of five months in making a refugee claim was inconsistent with his allegations of fear for his life. [10] The Appellant states that he would provide new evidence and a transcript of the RPD hearing. As to date, no new evidence or a transcript of the RPD hearing has been provided by the Appellant. The Appellant argues that when he made his claim for refugee protection he did not have legal representation. Therefore, he was unable to adequately explain his allegations of risk in Mexico. [11] The Appellant did not have counsel at the time his Basis of Claim form was completed. However, at the refugee protection hearing the Appellant was represented by legal Counsel. He also provided number of documents in support of his claim for refugee protection. Therefore, I find that Appellant was able to fully and sufficiently present his claim for refugee protection before the RPD. [12] The Appellant's Memorandum with respect to the findings of the RPD is significantly deficient. The Appellant fails to identify whether the RPD erred; where the alleged errors are in the RPD Reasons or how specifically the RPD erred in its findings. The Appellant does not even make a general statement as to the purported errors in the RPD's findings. [13] Section 110(1)4 of the IRPA provides that a person or the Minister may appeal to the RAD against a decision of the RPD, in accordance with the RAD Rules. RAD Rule 3(3)(g)5 places the onus on the appellant to identify in their memorandum the errors that are the grounds of the appeal and the location of the errors in the RPD's decision or in the audio or other electronic recording of the RPD hearing. [14] Rule 3(3)(g)6 of the of the RAD Rules states: Content of appellant's record (3) The appellant's record must contain the following documents, on consecutively numbered pages, in the following order: ... (g) a memorandum that includes full and detailed submissions regarding (i) the errors that are the grounds of the appeal, (ii) where the errors are located in the written reasons for the Refugee Protection Division's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the Refugee Protection Division hearing, (iii) how any documentary evidence referred to in paragraph (e) meets the requirements of subsection 110(4) of the Act and how that evidence relates to the appellant, (iv) the decision the appellant wants the Division to make, and (v) why the Division should hold a hearing under subsection 110(6) of the Act if the appellant is requesting that a hearing be held. [15] The RAD Rules clearly indicate that the onus is on the Appellant to submit a memorandum that includes full and detailed submissions regarding the error (s) that are the grounds of appeal. [16] The Federal Court of Appeal in defining the RAD's role in Huruglica7 held that, "Thus, after carefully considering the RPD Decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred." In defining the RAD's role, the Federal Court of Appeal reinforces the principle that it is the Appellant's responsibility, not the RAD's, to establish that the RPD erred in a way that requires the RAD's intervention. [17] The Federal Court in Dhillon8 noted that "it is not the RAD's function to supplement the weakness of an appeal before it." [18] The Federal Court in Ghauri 9 endorsed the principles set out in Dhillon and stated that, "Appellants before the RAD that fail to specify where and how the RPD erred do so at their peril." [19] The Appellant's Memorandum does not identify any errors or include any arguments as to how the RPD erred in rejecting his refugee claim. Rather, the Memorandum simply lists the findings made by the RPD. [20] According to Rule 3(3)(g)10 of the RAD Rules, the Appellant is required to present full and detailed submissions regarding the errors committed by the RPD and where the errors are located. As per the jurisprudence noted above, the RAD is not mandated to search for errors in the RPD Decision if the Appellant does not point them out. Given the absence of submissions specifying which errors were made by the RPD; references to where these errors were made in the RPD Decision and the recording of the hearing. I find that the requirements of RAD Rules 3(3)(g)(i) and 3(3)(g)(ii) are not met. [21] It is not the role of the RAD to conduct a microscopic search for errors and/or to speculate as to the RPD's errors. However, it the RAD's role to conduct its own independent assessment of the record. After conducting my own independent assessment of the RPD Record, I do not see any obvious errors in the RPD's decision. Therefore, I confirm the RPD Decision. CONCLUSION [22] I find that the Appellant has failed to establish a well-founded fear of persecution under section 96 of the IRPA.11 For the same reasons, I find that he is not a person in need of protection in that he would not be subjected personally to a risk to life, a risk of cruel and unusual treatment or punishment, or a danger of torture under section 97 of the IRPA.12 [23] Pursuant to section 111(1)(a) of the IRPA,13 I confirm the decision of the RPD and dismiss the appeal. (signed) Kamal Gill Kamal Gill October 13, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 111(1)(a). 3 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. 4 IRPA, section 110(1). 5 Refugee Appeal Division Rules, SOR/2012-257, Rule 3(3)(g): Perfecting appeal; Content of appellant's record. 6 Ibid. 7 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157, at para. 103. 8 Dhillon v. Canada (Citizenship and Immigration), 2015 FC 321, at para. 20. 9 Ghauri, v. Canada (Citizenship and Immigration), 2016 FC 548, at para. 34. 10 Refugee Appeal Division Rules, SOR/2012-257, Rule 3(3)(g). 11 IRPA, section 96. 12 Ibid., section 97. 13 Ibid., section 111(1)(a). --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC1-04207 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