MB9-27251

RAD File No. / No de dossier de la SAR : MB9-27251 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 December 2, 2020 Date de la décision Panel Me Martine Durocher Tribunal Counsel for the person who is the subject of the appeal Jorge J. Colasurdo 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] XXXX XXXX XXXX XXXX, the appellant, is a citizen of Mexico. He is appealing the decision of the Refugee Protection Division (RPD) rendered on October 22, 2019, rejecting his refugee protection claim. [2] The appellant allegedly fears for his life if he had to return to Mexico. He explains that he reported two individuals who had abducted and killed the partner (XXXX) of his nephew (XXXX) on XXXX XXXXandXXXX XXXX XXXX 2017, respectively, and who were subsequently detained. He states that one of them was released two months later and threatened him with a firearm on XXXX XXXX XXXX 2018. He claims that he managed to get away from him and filed a complaint with the police on XXXX XXXX XXXX 2018. He states that his assailants belong to criminal gangs that are part of the cartels. He left Mexico for Canada on XXXX XXXX XXXX 2018. He adds that, after he was in Canada, he learned that other suspicious individuals were looking for him at the XXXX where he used to work. [3] The RPD concluded that the appellant had an internal flight alternative (IFA) in the states of Yucatan or Campeche. [4] The determinative issue for the Refugee Appeal Division is that of the IFA. DETERMINATION [5] I dismiss the appeal. The RPD was correct to determine that the appellant is neither a Convention refugee nor a person in need of protection. ROLE OF THE REFUGEE APPEAL DIVISION [6] I will review the RPD decision by applying the correctness standard, after conducting an independent analysis of all the evidence before me, including the recording of the hearing.1 ANALYSIS [7] The test to be applied in assessing an IFA was defined by the Federal Court of Appeal in Rasaratnam2 and Thirunavukkarasu,3 and it is clear from those decisions that the test for determining whether an IFA exists has two prongs: i. ...the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists. ii. Moreover, conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there. [8] Both prongs must be established to conclude that an IFA exists. [9] Regarding the first prong, the RPD concluded that the agents of persecution were mere criminals who did not hold a position of power in a specific criminal organization that would enable them to pursue the appellant in the states selected as IFAs.4 It also concluded that the agents of persecution had no interest in searching for him, given that he was not responsible for their arrest and had not been involved in the legal proceedings.5 [10] The central question of fact is whether or not the agents of persecution are members of or associated with a criminal organization, which could provide the means to find the appellant anywhere in Mexico. I also note that the appellant's credibility is not in doubt regarding the alleged facts, that is, the events of XXXX XXXXandXXXX XXXX XXXX 2017, and his encounter with one of the agents of persecution at the XXXXonXXXX XXXX XXXX XXXX 2018. Therefore, I am of the view that the facts were established on a balance of probabilities. Also, the RPD did not dismiss the presence of powerful cartels in the state of Guerrero, as indicated in the National Documentation Package (NDP) on Mexico. The RPD faulted the appellant for the lack of evidence linking the agents of persecution to the criminal organizations, as well as regarding their interest in finding the appellant given his lack of involvement in the legal proceedings that led to their arrest. [11] The RPD noted an inconsistency in the appellant's testimony regarding someone called "XXXX XXXX," whom he allegedly identified as one of the two individuals he saw in the victim XXXX vehicle. According to the panel, it was not until he was questioned by his counsel that he brought up this name, explaining that he was backed by powerful people.6 [12] In my opinion, the RPD made an error of fact. The appellant testified in Spanish about being sought by a "XXXX XXXX," translated into French as "un grand brun" [a big brown-haired guy]. This is not a nickname; rather, it is a description of a young man with brown hair, as the appellant stated at the beginning of his testimony when he described the individuals in the vehicle with the victim.7 Therefore, I concur with the appellant's argument that he did not change his testimony, that it was actually the RPD that misunderstood and misinterpreted the testimony. [13] Then, the panel concluded that, since the agents of persecution were looking for him and did not know where he was, they failed to find him, and therefore this demonstrated their inability to find him.8 I cannot agree with this logic. It is not because they were looking for him that they could not find him. Their ability to find the appellant depends on a number of factors, and asking for him at the XXXX XXXX cannot lead to the sole conclusion that the agents of persecution could not find him. I disagree with the conclusion of the RPD, which therefore made an error of fact. [14] However, I agree with the RPD that if the appellant was able to hide successfully at his mother's home, which had always been his sole residence in Mexico, for one month before leaving for Canada, and if his mother has so far had no problems since the time of the incidents, then it indicates that the agents of persecution lack the interest and/or ability to find the appellant. At the XXXX XXXX and throughout his neighbourhood, the appellant was selling XXXX that he prepared at home. The other vendors and other people in the neighbourhood knew him. I am of the opinion that if the agents of persecution had shown even the slightest interest and had the means available to criminal organizations, it would have been easy for them to find the appellant at his home in order to harm him. [15] I note that the appellant's allegations that the agents of persecution were members of a criminal organization were inferred from the events: he asserts that the detention and speedy release of the victim's kidnappers and murderers, the ability to track down the victims and the violent behaviour simply confirm that the agents of persecution are members of powerful cartels, and the appellant argues that this is corroborated by the objective evidence and the evidence that he submitted but that was ignored by the RPD.9 [16] The appellant reiterated the same view in his testimony. The appellant assumed that because the agents of persecution were involved in criminal conduct, they had to be members of a criminal cell associated with a cartel. He reasoned that they could not sell drugs without belonging to a cartel.10 He did not know their names or the name of their gang, or the name of the cartel with which they were allegedly associated.11 He explained that these groups are highly structured, that they are unforgiving and that he would be regarded as an enemy by all members of the group.12 [17] It is my opinion that the objective documentary evidence presents the scope of the problems related to the cartels operating in Mexico.13 However, under Tab 7.15, the documentary evidence explains that the larger cartels in Mexico have become fragmented and have been replaced by "smaller, more volatile criminal groups that have taken up other violent activities."14 These factions are smaller and more local, and each has its own operations, priorities and alliances. A US Congressional Research Service report on organized crime in Mexico states that the structures of both the Gulf and Los Zetas have been decimated by the actions of state authorities. These groups now operate as fragmented cells that do not communicate with each other and often take on new names.15 Specifically for the state of Guerrero, "sources indicate that kidnapping and extortion by small gangs are common in order to generate income."16 Lastly, the documentary evidence states that filing a police complaint would lead to pressure to drop the complaint and "almost certainly...death" if the individual did not comply.17 [18] I note that the appellant was able to provide very few details about the agents of persecution, aside from a very basic physical description. There is no evidence that they were selling drugs, only perhaps some suspicions. Also, the alleged position of power of one of the agents of persecution is based on rumours.18 There is no indication that he was pressured to drop his police complaint of XXXX XXXX XXXX 2018. [19] Therefore, I am of the view that the RPD correctly concluded that the appellant failed to establish, on a balance of probabilities, that the agents of persecution held a position of power in a specific criminal organization that would enable them to pursue the appellant in one of the cities identified as IFAs. According to the documentary evidence, it is also possible that the agents of persecution belong to a small gang, not directly related to a cartel, that engaged in extortion through kidnapping, followed by murder. The inferences that the appellant made are possible, but they are speculation, which is insufficient to demonstrate the link between the agents of persecution and a potential criminal organization, on a balance of probabilities. [20] I also agree with the RPD's reasoning that the appellant failed to demonstrate, on a balance of probabilities, that the agents of persecution would have any interest in pursuing him in the states of Yucutan and Campeche, given that he was not involved in the prosecutions against the perpetrators and was not responsible for their arrest. [21] The appellant alleges that he witnessed a violent crime, that he had some knowledge of those responsible for the crime and that his nephew was the victim's partner. He also reiterates that he verbally reported the crime anonymously, which may have been evidence that led to the arrest of the agents of persecution. He claims to be the target of retaliation and even a murder attempt that forced him to hide at his mother's home. Since leaving Mexico, he has also been the target of new retaliation in his country of origin. [22] I cannot concur with the description of the facts as alleged by the appellant. The evidence shows that he saw the victim with the agents of persecution in a vehicle. At that time, he had no idea that a crime was being committed, and it was not obvious from what could be seen, either. He did not witness the victim being confined, murdered or located. He was not involved in the legal proceedings and there is no indication that the agents of persecution were aware that he had filed an anonymous complaint. As stated above, the appellant stayed at his residence for one month before leaving for Canada, without mishap. His mother has never been the target of retaliation. He stated that people were looking for him at the XXXX XXXX while he was in Canada. Without further details about the identity of the people who were looking for him that might reveal their possible intentions toward the appellant, I do not agree that this incident could be described as [translation] "retaliation." [23] Therefore, I conclude that the RPD correctly concluded that the appellant would not be subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment or to a danger of torture in the IFAs.19 [24] The appellant did not contest the RPD's conclusion with regard to the second prong of the IFA, namely, that he failed to demonstrate that the proposed IFAs would be objectively unreasonable.20 [25] I note that there is no evidence on the record that might indicate his inability to find work or housing in the IFAs. The appellant is around XXXX years old and was a XXXX XXXX in Acapulco's XXXX XXXX, but he had also been a XXXX XXXX in the past, and he worked in the XXXX XXXX in the United States. His children are adults. Nothing is stopping him from relocating to the IFAs for his safety. [26] Therefore, I conclude that the RPD correctly found that the second prong of the IFA had been satisfied. [27] Consequently, I am of the opinion that the RPD correctly concluded that the appellant failed to demonstrate that he would face a serious possibility of persecution within the meaning of the Convention, or that he would be subjected to a risk to his life or to a risk of cruel and unusual treatment or punishment or to a danger of torture if he were to return to the proposed states in Mexico. CONCLUSION [28] I dismiss the appeal and confirm the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Me Martine Durocher Me Martine Durocher December 2, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Rasaratnam v. Canada (1992) 1 F.C. 706 (C.A.), p. 710. 3 Thirunavukkarasu v. Canada (1994) 1 F.C. 589 (C.A.). 4 Refugee Protection Division (RPD) decision, para. 28. 5 RPD decision, para. 28. 6 RPD decision, paras. 21-22. 7 Recording of the hearing, at 20 minutes and at 1:54 minutes. 8 RPD decision, para. 25. 9 Appellant's memorandum, para. 21. 10 Audio recording, at approximately 1:48. 11 Audio recording, at approximately 1:13. 12 Audio recording, at approximately 1:29. 13 National Documentation Package (NDP), Mexico, September 30, 2020, Tab 7.15: ?Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana and the Beltrán Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017-August 2019). Immigration and Refugee Board of Canada. August 15, 2019. MEX106302.E; NDP, Mexico, September 30, 2020, Tab 7.22: ?Mexico's Out-Of-Control Criminal Market. Foreign Policy at Brookings. Vanda Felbab-Brown. March 2019; NDP, Mexico, September 30, 2020, Tab 7.13: ?Policy Brief: The New Generation: Mexico's Emerging Organized Crime Threat. Justice in Mexico. Lucy La Rosa; David A. Shirk. March 19, 2018; NDP, Mexico, September 30, 2020, Tab 7.12: ?Jalisco Cartel New Generation (CJNG). InSight Crime. July 8, 2020; NDP, Mexico, September 30, 2020, Tab 7.2: ?Mexico: Organized Crime and Drug Trafficking Organizations. United States. Congressional Research Service. June S. Beittel. July 28, 2020. R41576. 14 NDP, Mexico, September 30, 2020, Tab 7.15: ?Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana and the Beltrán Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017-August 2019). Immigration and Refugee Board of Canada. August 15, 2019. MEX106302.E, p. 1. 15 NDP, Mexico, September 30, 2020, Tab 7.15: ?Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana and the Beltrán Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017-August 2019). Immigration and Refugee Board of Canada. August 15, 2019. MEX106302.E, point 2.2. 16 NDP, Mexico, September 30, 2020, Tab 7.15: ?Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana and the Beltrán Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017-August 2019). Immigration and Refugee Board of Canada. August 15, 2019. MEX106302.E, point 3. 17 NDP, Mexico, September 30, 2020, Tab 7.15: ?Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana and the Beltrán Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017-August 2019). Immigration and Refugee Board of Canada. August 15, 2019. MEX106302.E, point 5.4. 18 Recording of the hearing, at approximately 1:54. 19 RPD decision, para. 29. 20 RPD decision, para. 34. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-27251 RAD.25.02 (January 14, 2020) Disponible en français 8 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 14, 2020) Disponible en français