MC1-04330

RAD File No. / No de dossier de la SAR : MC1-04330 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 Date of decision December 13, 2021 Date de la décision Panel Charles Gauthier Tribunal Counsel for the person who is the subject of the appeal Armando Javier Machado Rubio 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 (appellant) is a citizen of Mexico. He is appealing the decision of the Refugee Protection Division (RPD) rejecting his refugee protection claim for lack of credibility and because an internal flight alternative (IFA) is available in the city of Cancún (Quintana Roo). Summary of relevant facts [2] The appellant arrived from Mexico on XXXX XXXX, 2019. He comes from the city of Tepic in the state of Nayarit. He alleges that he is a member of the LGBT community in Mexico and that he was pressured by an uncle, who allegedly found out about his homosexuality in XXXX 2019. He reportedly solicited him for sex, failing which he would rape his sister. In late XXXX 2019, the appellant's mother discovered that her daughter, then 15 years old, had had sexual relations with her uncle when she intercepted her communications with a girlfriend. In a police statement, she states having repeatedly agreed to have sexual relations with her uncle. The mother allegedly filed a complaint against the uncle with the authorities. That is when she reportedly learned of the appellant's sexual orientation. [3] The appellant submits that the uncle in question seeks revenge against him due to the complaint to the authorities regarding the abuse that the appellant's sister was subjected to, and that this uncle is an influential member of the Cártel Jalisco Nueva Generación (CJNG). The appellant considers himself responsible for the discovery of the sexual relations between his sister and his uncle, which is why he is allegedly targeted by his uncle. The uncle reportedly managed to avoid the judicial system due to his influence and had the appellant, who worked as a XXXX, followed at the end of his work shifts to have him shot. He also submits that he cannot live in Mexico free of persecution because of his membership in the gay community and that he will be forced to live as a homosexual man in secret. The Refugee Protection Division's position [4] The RPD considered the Chairperson's Guideline 9: Proceedings before the IRB Involving Sexual Orientation and Gender Identity and Expression.1 The RPD found that the appellant's version regarding the risk posed by his uncle is not credible because he failed to reasonably explain the contradictions and omissions between his written account and his testimony. It did not believe that the appellant's uncle made sexual advances toward him, and it did not believe that the uncle was a member of the CJNG. It did not believe that he threatened to attack his sister if he did not have sex with him. It did not believe that his uncle threatened him in order to hide the fact that he was attracted to men. [5] The RPD believed that the appellant was a homosexual man and that his sister was sexually abused by her uncle, aged 29 years. It concluded that the appellant had a viable IFA in Cancún in the state of Quintana Roo. The appellant's position [6] The appellant argues that the RPD erred in its assessment of the facts by discounting his version of events. In his view, the inconsistencies and discrepancies raised by the RPD do not represent significant contradictions, considering his explanations. Regarding the identified IFA, the RPD failed to consider all of the evidence, the regional conditions in Mexico, or his particular circumstances. The RPD did not take into account the cumulative discrimination that may amount to persecution. He will be forced to live by hiding his sexual orientation. [7] The RPD considered only the passages of the objective evidence that support its findings and failed to consider the objective evidence as a whole. The RPD did not question the appellant regarding the identified IFA. Procedural fairness requires that the decision-maker consider all the evidence and the refugee protection claimant's education level and intellectual capacity. Determinative issue [8] The determinative issue for the Refugee Appeal Division (RAD) is credibility. DETERMINATION [9] I dismiss the appeal. The RPD's decision is correct. The appellant is neither a Convention refugee nor a person in need of protection. I conducted an independent analysis of the record. In my analysis, I considered the Chairperson's Guideline 92 with regard to the appellant's allegation that he is a member of the LGBT community. The appellant was unable to provide satisfactory explanations for the contradictions and inconsistencies between his written account and his testimony. The connection he made between his sexual orientation and the fact that his 15-year-old sister was abused by a 29-year-old family member was not established. He is not the person who reported the uncle to the authorities; his mother was the one who discovered that her daughter was having sexual relations with the uncle in question. Despite the fact that he was recognized as a homosexual person, he did not establish the circumstances that, in his case, would amount to persecution. However, for the purposes of the analysis, the problems related to sexual orientation were taken to be proven. ANALYSIS Standard of review [10] My role is to review all of the evidence and determine whether the RPD's decision is correct.3 The appellants' role [11] The onus is on appellants to identify the errors that are the grounds of the appeal and where the errors are located.4 Credibility Overview [12] The appellant criticizes the RPD for making negative credibility findings regarding peripheral or secondary elements, which are not central to his claim. I disagree with these arguments. Many credibility issues were noted with the factual background at the heart of the appellant's claim. His theory of the case is that his uncle knew of his sexual orientation long before XXXX 2019 and that everyone knew that his uncle sought to harass him on that basis at family gatherings. Furthermore, according to the appellant, his parents divorced because the father did not accept having a homosexual son. The uncle also made sexual advances toward him and, when he refused, he threatened to sexually assault his sister. In order to hide his sexual orientation from his family, he allegedly failed to warn his sister to be wary of his uncle. Nonetheless, the uncle allegedly made these threats to the appellant in XXXX 2019, while sexual relations between the appellant's sister and the uncle began as early as XXXX 2019, with the consent of his 15-year-old sister. The appellant claims that his uncle wants to go after him because a complaint was filed with the police regarding the uncle's sexual abuse of a 15-year-old child, and these complaints were never withdrawn. However, it was the appellant's mother who filed the complaint. His sister described the circumstances of the relationship with her uncle in detail. She voluntarily went to spend time at the uncle's home. The sexual advances toward the appellant [13] The RPD did not believe that the appellant's uncle made sexual advances toward him and retaliated against the appellant's sister. The appellant's written account notes that it was in XXXX 2019 that his uncle allegedly threatened to sexually assault his sister if he did not have sex with him. He testified that his uncle allegedly began making advances toward him in XXXX 2019. When asked to explain the contradiction, he explained that he did not know which sister the uncle was referring to. When asked to explain why the initial threats are not mentioned in the written account, he explained that the initial threats were made in XXXX 2019, and the second threats were made in XXXX 2019. The RPD considered the responses unsatisfactory and contradictory because the appellant's written account mentions nothing about the threats that were made before XXXX 2019. The fact that it was one sister or the other does not change the fact that the start of the threats should have been mentioned in the appellant's written account. The RPD found that the appellant's credibility was undermined regarding the advances made toward the appellant and the threats made against his sister for his refusal to accept his uncle's advances. [14] Is this finding unreasonable because it is peripheral? I am of the opinion that it is not. The heart of the appellant's claim is based on the following: He is a homosexual person. His uncle made advances toward him and threatened to [translation] "rape" his sister if he did not accept. His uncle abused his sister, and the family learned of this in XXXX 2019. His uncle reportedly approached him at work to reiterate his sexual advances, which he did not believe. The uncle allegedly had him watched as he left work in order to have him attacked. The appellant's mother reportedly filed a complaint with the authorities regarding the abuse her daughter was subjected to. The uncle apparently wants revenge against the appellant for the complaint filed by the mother. The uncle is reportedly an influential man in the CJNG. These elements should be included in his story of persecution, risk and threats and supported by proof on a balance of probabilities. The RPD's conclusion is correct. The warning to his sister [15] The RPD asked the appellant if he warned his sister about his uncle. The explanations are that, since he did not want to reveal his sexual orientation, his warnings were not heeded by either his mother or his sister. When asked to explain why the written account does not mention these warnings or the fact that he tried to prevent his sister from going to his uncle's home, the appellant had no answer. When asked to explain why he did not disclose the threats, without revealing his sexual orientation, the appellant replied that he could not easily approach his mother, who blamed him for the divorce with his father, and that his sister was too young to understand. It should be noted that the mother blames the appellant for her divorce from his father, who did not accept his sexual orientation. The RPD was not satisfied with the appellant's explanations, which lack credibility because the written account does not mention his sister's many visits to his uncle's home or the fact that he tried to protect her from his uncle. [16] The RPD also did not accept the appellant's response that his sister was too young to be made aware of his uncle's threats, because a 15-year-old adolescent should understand what rape is and be made aware of the uncle's intentions. The RPD made a negative credibility finding regarding this matter. In addition to this finding is the fact that the appellant took no steps to prevent his sister from ending up at the uncle's home, especially when he testified that his sisters were his entire life. The RPD made a negative finding as to the appellant's credibility because he was aware of his uncle's intentions to have sexual relations with his sister, but did not intervene to prevent this from happening. The RPD made a negative credibility finding, concluding, on a balance of probabilities, that it did not believe that the appellant was aware of his uncle's intentions to have sexual relations with his sister until XXXX 2019, or that he attempted to warn his sister about his uncle. Is this element peripheral to the claim? I am of the opinion that it is not. As stated at paragraph 14 of this decision, the threats, the sexual advances, the abuse the sister was subjected to, and the complaint to the authorities, are elements that are central to the appellant's story of persecution, risk and threats. The negative credibility findings and the conclusion that the appellant was unaware of his uncle's intentions toward his sister and therefore did not warn his sister, are correct. The visit from his uncle upon leaving the bar [17] The RPD concluded that it did not believe that the appellant's uncle picked him up at 3:00 a.m. and invited him to go to sleep with him at his home. The written account states that the appellant tried to paint this as normal because he never imagined the uncle's intentions toward him and the family. When asked to clarify when this event occurred, he stated that it was in XXXX 2019. Yet, his uncle allegedly first made advances toward him in XXXX 2019, barring which he would go after his sister. He also allegedly tried to warn his sister against going to his uncle's home in XXXX 2019. When confronted with this, the appellant changed his answer, stating that he had inserted his sentence in the wrong place and that it was after XXXX that his uncle had waited for him after the bar closed and invited him to sleep with him at his home. Regarding this, the appellant's written account states that he did not believe his uncle and thought he was joking. When confronted with the statement that he did not believe that his uncle had any intentions toward his family or himself, he replied that he did not believe that anyone in the family could hurt them. [18] The RPD was not satisfied with these explanations and neither am I. At the same time, he believed his uncle and did not believe his uncle; at the same time, he warned his sister about his uncle, but did not believe his advances; at the same time, he was threatened with his sister's rape, but did nothing to hide his sexual orientation. The RPD pointed out its disbelief that, had he warned his sister about his uncle in XXXX 2019, he would have explained in his written account that he did not believe his uncle's threats toward the family. The RPD correctly made a negative credibility finding. [19] The RPD also made a negative credibility finding as to when his uncle showed up at his XXXX. The appellant began by stating that it was in XXXX 2019. When confronted with the fact that he testified that the advances occurred in XXXX 2019, the appellant explained that he had made a mistake. When asked when his uncle first showed up at his bar, he prevaricated, eventually stating that it was between XXXX and XXXX 2019. The RPD made a negative credibility finding based on the many contradictions regarding when his uncle showed up at his bar and stated that it did not believe that the appellant's uncle appeared at his bar to invite him to his home. It is clear that the appellant tried to adjust his responses in the face of the contradictions he was confronted with. The contradictions regarding the moment when his uncle allegedly made advances toward him are central to his refugee protection claim and the threats were made directly by the agent of risk. It would have been normal for the appellant to correctly relate these events, which are not trivial. The RPD's conclusion is correct. Harassment at family gatherings [20] The RPD noted the fact that the appellant's written account emphasizes that his uncle harassed and persecuted him at weekly family gatherings. When asked if his uncle made advances toward him after XXXX 2019, he stated yes. When asked to explain when, he stated that the only time his uncle made advances toward him was when he came to his bar. This element was addressed above. In light of the many unexplained contradictions, the RPD concluded that it did not believe that the claimant's uncle harassed him at family gatherings because he would have mentioned it during his testimony. In my view, this conclusion is secondary on its own, but is in addition to the appellant's credibility issues. In this sense, it is correct. Letters of support [21] The RPD considered the letters of support submitted by the appellant and found that the letters, which recount the appellant's alleged problems with his uncle, were not sufficient to overcome the many credibility issues raised in his testimony. I would like to add that these letters of support relate what the appellant told them. In addition, confirmation of the appellant's membership in the "living without labels"5 organization establishes that the appellant was an active member in that organization between XXXX 2018 and XXXX 2019. This directly contradicts his argument that he will be forced to live as a homosexual man in secret and that he will be persecuted if he returns to Mexico. The documents submitted do not support the appellant's theory of the case, but merely reiterate the story he put forward. The RPD's conclusion is correct. [22] The RPD concluded that the appellant failed to establish, on a balance of probabilities, that his uncle threatened him for refusing his sexual advances, and that a connection exists between him and the abuse experienced by his sister. It added that it was not established, on a balance of probabilities, that his uncle threatened him to keep him from disclosing the fact that he was attracted to men. In view of the many contradictions raised, I agree. These conclusions are correct. The uncle's membership in the Cártel Jalisco Nueva Generación [23] In his written account, the appellant states that his uncle wanted to go after him because he filed a complaint regarding the abuse his sister experienced and because the uncle wanted to keep the appellant from disclosing that he was attracted to men. He adds that his uncle is an influential member of the CJNG. [24] When confronted with the fact that the complaint was filed by his mother, the appellant explained that it was done to scare him and that the first intention was to speak to his mother. The RPD stated that it was not satisfied with the response because, if the uncle were a member of the CJNG, he would have directly threatened the appellant's mother to have her withdraw her complaint, rather than seek out the appellant at his workplace. The RPD added that if the uncle's intention had been to speak to his mother, as the appellant testified, his uncle and the cartel members would have spoken directly to her, which is not the case. In my view, and regardless of whether the uncle is a member of the CJNG, the uncle would have pressured the person who filed the complaint, not the other family members, except to incite them to push for the complaints to be withdrawn. The RPD found that this testimony undermined the appellant's credibility regarding his uncle's membership in the CJNG. Indeed, this does not prove that the uncle is a member of the CJNG, and his testimony regarding this, along with the other credibility issues, is undermined. The conclusion is correct. Threats against the mother [25] The RPD questioned the appellant as to whether or not his mother experienced retaliation from his uncle because she filed a complaint regarding the abuse her daughter had been subjected to. He answered no, because everything had been directed toward him; he added that his mother had been threatened, but that was all. He added that the threats were against him to keep him from revealing his attraction to men. When asked to explain why this is not included in his written account, the appellant explained that, upon arriving in Canada, he was not well and had had some difficult days. The RPD was not satisfied with the explanations because, one month before the hearing, he made changes to his record and stated, at the start of the hearing, that everything was complete and correct and that he had nothing to add. The RPD drew a negative inference from his failure to mention the threats against his mother in his written account. In my view, if the appellant were aware that his uncle was threatening his mother, it should have been included in the written account in order to demonstrate the current risk he faces if he returns to Mexico. The negative inference regarding credibility is correct. [26] The appellant was also asked to explain the threats that his mother received. According to him, his uncle threatened his mother that he would kill her or one of them if she did not withdraw her complaint. He testified that his mother did not withdraw her complaint and, when asked if there had been any follow-up, he answered no. He explained that, a few days after he left Mexico, his mother and sisters went into hiding at his aunt XXXX home, 30 minutes away. They reportedly stayed there for one year and returned to their family home with the grandfather. According to him, the grandfather was able to protect them. When asked to explain why he did not add this information to the written account when given the opportunity to do so at the start of the hearing, the appellant replied that he had not understood the question. The RPD was not satisfied with the explanations given for the omission. It also raised the fact that returning to live in the family home without having withdrawn her complaint against a person who is said to be an influential member of the CJNG is not behaviour that is consistent with that of a person who fears being killed by cartel members. The RPD drew a significant negative inference from the omission, because the fact that his sisters and mother had sought refuge from the agent of risk and then protection from the grandfather is important. It also asked the appellant to explain why, if he had given the prosecutor a statement some 10 days after the complaint was filed, he did not raise the issue of the threats made against him with the prosecutor. He testified that his mother had not filed a complaint with the prosecutor either. He explained that he was afraid to do so and that his mother did not do so, believing that the complaint regarding the abuse that her daughter was subjected to would settle the matter. The RPD was not satisfied with the explanations because, had the uncle made death threats against him, he would have been afraid to discuss the abuse against his sister. The same applies to his mother, who had the courage to file a complaint regarding the abuse against her daughter but failed to mention the death threats intended to have her withdraw the complaint. Considering the many credibility issues, the RPD concluded the appellant failed to establish, on a balance of probabilities, that his uncle was a member of the CJNG, and that his uncle threatened him and his family members with death for filing a complaint against him. The RPD gave no weight to the letters from co-workers, according to which men came to the bar where they worked in search of the appellant, because they are not sufficient to overcome the credibility issues noted in the appellant's testimony. I am of the opinion that the appellant's overall credibility, with the omissions, the contradictions that were not really explained, and the adjustment of his testimony when the inconsistencies and contradictions were brought to his attention, undermine the entirety of his story of persecution, risks and threats. This is the determinative issue regarding the outcome of his claim. The RPD's conclusion is correct. Sexual orientation and internal flight alternative [27] The RPD concluded that the appellant is a homosexual person and that his sister was abused by his uncle. Because the situation of the appellant's sexual orientation was acknowledged, an IFA in the city of Cancún was identified. [28] In my view, the IFA issue is not determinative regarding the outcome of the appellant's appeal. Although he is a homosexual person and the objective evidence establishes that some members of Mexico's LGBT community have experienced violence related to their sexual orientation or gender, the onus is on the claimants to establish that they have been subjected to persecution on one of the five Convention grounds. Although the appellant established that he is a homosexual person, he did not demonstrate that he experienced persistent discrimination that amounts to persecution, besides the allegations against his uncle, which were not found to be credible. Thus, there is no need for me to analyze the IFA issue. The objective evidence [29] The appellant criticizes the RPD for its failure to consider all of the objective evidence and considering only the passages that support its conclusions. First, the appellant fails to mention which passages were apparently omitted by the RPD that are likely to constitute an error in the assessment of the evidence. Moreover, since the IFA issue is not determinative of the appeal's outcome, the RAD cannot consider the argument. Procedural fairness [30] The appellant submits that procedural fairness must allow the decision-maker to consider the evidence in light of its context, as the appellant provided a precise statement based on his cultural, educational and intellectual abilities. [31] The appellant does not indicate where the RPD breached procedural fairness and does not provide any evidence in this regard. The appellant did not submit evidence to demonstrate the RPD's lack of independence and impartiality. In Mugesera,6 it was held that, in the absence of evidence to the contrary, the decision-maker is presumed to be impartial. I am of the opinion that the RPD did not err. The argument cannot be accepted. CONCLUSION [32] Considering all of the evidence and the major credibility issues, I am of the opinion that the appellant failed to discharge his burden of proof requiring him to establish a serious possibility of persecution on one of the Convention grounds. He failed to demonstrate, on a balance of probabilities, that he would be subjected personally to a risk to his life or to cruel and unusual treatment or punishment if he were to return to Mexico. [33] I dismiss the appeal and confirm, for other reasons, the RPD's determination that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Charles Gauthier Charles Gauthier December 13, 2021 Date IRB translation Original language: French 1 Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act, SC 2001, c. 27, effective May 1, 2017. 2 Supra, endnote 1. 3 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 4 Subparagraph 3(3)(g)(i) the errors that are the grounds of the appeal; and (ii) where the errors are located in the written reasons for the RPD's decision that the appellant is appealing or in the transcript or in any audio or other electronic recording of the RPD hearing. 5 SPR-1, Refugee Protection Division (RPD) record, Document 4, Exhibit C-2, Confirmation from Ricardo Ivan Hernandez Bermudez dated January 25, 2021, page 123 of the RPD record. 6 Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 39, [2005] 2 SCR 91. --------------- ------------------------------------------------------------ --------------- RAD File No. / No de dossier de la SAR : MC1-04330 RAD.25.02 (August 20, 2021) Disponible en français 3 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