MB9-25847

RAD File No. / N° de dossier de la SAR : MB9-25847 MB9-25848 / MB9-25849 / MB9-25850 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 XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision January 9, 2020 Date de la décision Panel Normand Leduc Tribunal Counsel for the persons who are the subject of the appeal Me Émilie Le-Huy 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 INTRODUCTION [1] XXXX XXXX XXXX XXXX, her minor daughter XXXX XXXX XXXX XXXX, her spouse XXXX XXXX XXXX XXXX, and their son XXXX XXXX XXXX XXXX, all citizens of Mexico, are appealing the Refugee Protection Division (RPD) decision rejecting their claim for refugee protection. [2] XXXX XXXX XXXX XXXX, the principal appellant, was appointed as the designated representative of her two minor children. [3] In rendering its decision, the Refugee Appeal Division (RAD) took into account the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution. DETERMINATION OF THE APPEAL [4] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the RPD's determination, namely, that XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. BACKGROUND [5] In the Basis of Claim Form (BOC Form) she filed with the RPD, the principal appellant XXXX XXXX XXXX XXXX alleged that, in Mexico, she fears her former spouse, a man named XXXX, who claims to be the biological father of her daughter XXXX XXXX and has been threatening and assaulting the principal appellant since her daughter was born in 2012. XXXX is also allegedly involved in XXXX XXXX. [6] The female appellant lived with XXXX for a period of time in Cancun, before leaving him and moving back in with her mother in Merida, a city in the state of Yucatan. XXXX allegedly followed her and continued to threaten, insult and assault her. [7] The female appellant met her current spouse, the appellant XXXX XXXX, in 2015, and their child, the minor appellant XXXX XXXX, was born in 2017. XXXX XXXX was also threatened and assaulted by XXXX. [8] The appellants left Mexico on XXXX XXXX XXXX 2018, and came to Canada, where they claimed refugee protection. [9] Following the hearing held on September 5 and 12, 2019, the RPD rejected the refugee protection claim on the grounds that internal flight alternatives (IFA) were available to the appellants in Mexico, in the cities of Acapulco (in the state of Guerrero) and Manzanillo (in the state of Colima). [10] The appellants are arguing before the RAD that the RPD erred in its assessment of the IFA, for reasons that will be explained below, as needed, in the Analysis section. [11] For these reasons, the appellants are asking the RAD to set aside the RPD's determination and grant them refugee protection or, alternatively, to refer the matter to the RPD for re-determination. STANDARD OF REVIEW AND ROLE OF THE REFUGEE APPEAL DIVISION [12] The RAD's role is to review RPD decisions, applying the correctness standard of review after conducting its own analysis of the record, in order to determine whether the RPD erred as the appellants allege. ANALYSIS [13] The issue to be decided in this case is whether or not the RPD erred in its assessment of the IFA available to the appellants in Mexico. [14] In my opinion, the answer to this question is no, for the reasons that follow. [15] The test for assessing an IFA was defined by the Federal Court of Appeal in Rasaratnam (Rasaratnam v. Canada (1992) 1 F.C. 706 (C.A.), p. 710) and Thirunavukkarasu (Thirunavukkarasu v. Canada (1994) 1 F.C. 589 (C.A.)). These decisions clearly establish a two-pronged test for determining whether an IFA exists: 1- ... 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. 2- Moreover, conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for the claimant to seek refuge there. [16] Each prong must be satisfied in order to conclude that an IFA is available. [17] With respect to the first prong of the analysis, the RPD concluded that an IFA was available to the appellants in both Acapulco and Manzanilla, for the reasons that follow. 1-The Cartel del Golfo, which XXXX is allegedly involved with, is not active in the states where those cities are located [18] After reviewing the RPD's decision, however, it seems that the panel had some doubts as to the credibility of the allegation that XXXX is a member of the Cartel del Golfo. [19] This allegation was made during the hearing and does not appear in the adult appellants' BOC Forms. When questioned on this point, the female appellant answered that an acquaintance had told her this only 15 days before the hearing. The RPD pointed out to the female appellant that she had filed an amended written account the day before the hearing, and she stated that the acquaintance in question did not want her testimony filed in evidence, which is why the female appellant did not include the information in her BOC Form. [20] The RPD drew a [translation] "negative inference" from this major omission, but did not make a negative credibility finding. On the contrary, the RPD then questioned the female appellant about XXXX role in the cartel and confronted her with the documentary evidence indicating that the Cartel Del Golfo is not active in the areas put forward as IFAs. [21] The RPD also drew a "negative inference" from the fact that the appellants were unable to name XXXX alleged contacts in the government. [22] In their memorandum, the appellants argue that even though the Cartel del Golfo is not active in the cities proposed as IFAs, its members would still be able to track them down in those cities. [23] In my opinion, the evidence presented does not establish that XXXX would have the ability to find the appellants in Mexico. There is no evidence that XXXX might be a high-ranking member of the Cartel, if he is a member at all. In fact, the female appellant testified that XXXX is a XXXX XXXX and is often drunk or high himself. [24] The evidence also does not establish that Cristian has important contacts in the government, much less within the governments of distant states in the Yucatan. 2-XXXX is not XXXX father according to the official documents from Mexico [25] The evidence shows, in fact, that XXXX has no legal relationship to the minor appellant XXXX XXXX. [26] Therefore, XXXX would not be able to use the courts or other administrative services to locate and potentially obtain custody of the minor appellant in Mexico. [27] Moreover, I note that XXXX has never applied to the courts in Mexico to be recognized as the father of the appellant XXXX XXXX. [28] In my opinion, the RPD did not err in drawing this conclusion. 3-The fear of the police alleged by the appellant XXXX XXXX is not credible [29] This fear is not credible because when the male appellant was questioned about what he fears in Mexico, he did not mention either the police or specific officers who are allegedly colluding with XXXX. He even went so far as to state that, in general, he has no problems except with XXXX. [30] The appellants have not specifically challenged the RPD's conclusion, and I do not see any point on which the RPD might have erred in this regard. This omission is significant and necessarily undermines the male appellant's credibility. [31] In light of the foregoing, I come to the same conclusion as the RPD, namely, that the appellants would not face a serious possibility of persecution or a likelihood of being subjected to a danger of torture or a risk of cruel and unusual treatment or punishment if they were to relocate within Mexico, to either Acapulco or Manzanilla. [32] The appellants have not specifically challenged the RPD's decision concerning the second prong of the IFA analysis, that is, the reasonableness of the IFA. [33] I see no point on which the RPD might have erred in this regard. [34] The appellants have put forward no reasons that would make it objectively unreasonable for them to settle in either Acapulco or Manzanilla. [35] Taking into account the adult appellants' personal characteristics, there is nothing to indicate that they would be unable to find work and housing in those locations. Likewise, the minor appellants would be able to attend school in that state. [36] Mexico has no legislation that would prohibit, for example, the appellants from settling in the cities proposed as IFAs. [37] Therefore, in light of the foregoing, I conclude that the appellants have failed to demonstrate that the RPD made errors warranting the RAD's intervention. REMEDY [38] For these reasons, I confirm the RPD's determination, namely, that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX XXXX are not "Convention refugees" under section 96 of the IRPA or "persons in need of protection" within the meaning of section 97 of the IRPA. [39] The appeal is dismissed. Norman Leduc Normand Leduc January 9, 2020 Date IRB translation Original language: French RAD File No. / N° de dossier de la SAR : MB9-25847 MB9-25848 / MB9-25849 / MB9-25850 RAD.25.02 (April 4, 2019) 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 (April 4, 2019) Disponible en français