VC0-03095

RAD File / Dossier de la SAR : VC0-03095 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 Toronto, ON Appel instruit / entendu à Date of decision May 11, 2021 Date de la décision Panel J. Lourenço Tribunal Counsel for the person who is the subject of the appeal Juliana Dalley 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 Guatemala. She appeals a decision of the Refugee Protection Division (RPD) dated November 29, 2019 rejecting her claim for protection. She alleges that she faces a serious possibility of persecution and a risk to life due to her refusal to comply with extortion demands. The RPD found that the Appellant had a viable internal flight alternative (IFA) in Guatemala City and Quetzaltenango and rejected her claim. [2] For the reasons that follow, I agree with the RPD. The Appeal is dismissed. BACKGROUND [3] The Appellant alleges that she fears two unknown persons who were trying to extort her and made threats against her. The Appellant alleges that she worked for a XXXX and was contacted by two unknown people in XXXX 2016 asking her to release the XXXX information of wealthy clients, but she did not comply with this demand. She alleges that on one occasion she was followed by unknown men who then came to her house, where she lived with her mother. The Appellant alleges that they did not open the door and scared off the men with their screams. The Appellant alleges that this incident caused her mother's blood pressure to rise and subsequently caused her death due to diabetic shock. The Appellant alleges she feared for her safety and moved to the United States (US) with her common-law partner, but they were both deported. [4] The Appellant alleges that following their deportation, she and her spouse moved to XXXX XXXX. The Appellant alleges that when she was shopping at a local market, she saw two men who she believed were the same men who followed her in her hometown, however she was never approached or spoken to by the men. The Appellant and her spouse then relocated to Guatemala City, where they lived for a few months without incident, before migrating to Mexico. The Appellant and her spouse then once again attempted to immigrate to the US from Mexico but were apprehended by border officials. The Appellant's spouse was immediately deported; however, as she was pregnant at the time, the Appellant was released from immigration detention on conditions. The Appellant then came to Canada where she made a refugee claim. [5] The Appellant alleges that her spouse was living in Guatemala City after he was deported. The Appellant alleges he was murdered in XXXX 2019. The Appellant testified that she believed the men who had tried to extort her had murdered her spouse, however she was not sure of his cause of death as the police had not provided any such information to her. The RPD found that the Appellant had a viable IFA in Guatemala City and Quetzaltenango and rejected her claim. [6] The Minister intervened in the Appellant's claim by way of written submissions before the RPD, arguing that the Appellant lacked credibility. The Minister is not intervening at the Refugee Appeal Division (RAD), and as the determinative issue is IFA, I will not revisit the Minister's arguments. ROLE OF THE REFUGEE APPEAL DIVISION [7] The RAD reviews decisions of the RPD on a standard of correctness after conducting an independent assessment of the evidence before it. Unless specifically stated below, I have applied a correctness standard.1 ANALYSIS Appellant's arguments [8] The Appellant argues that the RPD erred when it found that she did not have a nexus to the Refugee Convention. The Appellant argues that the RPD erred in its IFA analysis. She argues that the RPD failed to consider her evidence that her agents of harm had connections to the police. She also argues that the RPD failed to consider the objective evidence which she argues establishes that those who fail to comply with extortion demands from gangs face violent retaliation. The Appellant argues that gang violence and extortion are common in the proposed IFA locations. She also argues that she would have difficulty in securing employment and childcare and for these reasons relocation to the IFA locations would be unreasonable. Oral Hearing [9] The Appellant asks that a hearing be held if credibility is an issue for the RAD.2 However the Appellant does not submit any new evidence with her appeal. Therefore, the conditions for an oral hearing in subsection 110(6) of the Immigration and Refugee Protection Act3 are not met and I cannot hold a hearing. Nexus to the Refugee Convention [10] The RPD did not make an explicit finding about whether the Appellant had a nexus to the Refugee Convention. However, in its analysis the RPD found that the Appellant had not established that she faced either a serious possibility of persecution nor a risk to life in the IFAs. [11] The Appellant argues that the RPD erred by failing to consider that her refusal to comply with the extortion demands of a criminal organization would lead to her having an impugned political opinion or belonging to a particular social group and thereby establishing a nexus to the Convention. [12] I am not persuaded by this argument. Firstly, I note that the Appellant's counsel at the RPD was asked if there was a nexus to the Convention and replied that there was none being argued.4 In my independent analysis of the record, I also find that the Appellant has not established that her claim has a nexus to a ground in the Refugee Convention. For the reasons that follow, I find that the Appellant has not established that her agents of harm are even members or associates of a criminal organization. She also failed to establish that they, or any associated organization, have a political connection. The Appellant's evidence was that she was targeted because she was working at a XXXX. I find that this fails to make a link to a Convention ground. Finally, in the alternative, I agree with the RPD that the Appellant has not established that she faces a serious possibility of persecution or a risk to life, or a risk of cruel and unusual treatment or punishment, or a danger of torture in the IFA locations. The determinative issue is IFA [13] The RPD concluded that IFA was the determinative issue and focused its analysis on whether the Appellant had a viable IFA in Guatemala City and Quetzaltenango. As such, the determinative issue in this appeal is whether the Appellant has a viable IFA. [14] The test for assessing an IFA is two-pronged and is set out in the Federal Court of Appeal's decision in Rasaratnam:5 (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 and/or the claimant would not be personally subject to a risk to life or risk of cruel and unusual treatment or punishment or danger, believed on substantial grounds to exist, of torture in the IFA. (2) Moreover, the 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 claim, for the claimant to seek refuge there. [15] Both prongs must be satisfied to find that the Appellant has an IFA. Once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with the Appellant to show that they do not have an IFA. An IFA must be a realistic and attainable option.6 First prong: Do the agents of harm have the means and motivation to locate the Appellant in Guatemala City and Quetzaltenango? [16] Guatemala has a population of over 16 million people with over 2.8 million people residing in the capital Guatemala City.7 The Appellant has not established that the agents of harm have the means and motivation to locate her in Guatemala City and Quetzaltenango [17] The RPD found that the Appellant had not established that the agents of harm had the means and motivation to locate her in Guatemala City and Quetzaltenango. The RPD found that while the Appellant argued that her agents of harm could find her in every part of Guatemala, she had not provided credible and reliable evidence to establish this. The RPD noted that the Appellant alleged that she believed she saw these men at a market in XXXX XXXX two months after she relocated to that city. However, when asked if she was certain, she admitted that she was unsure if these were the same people who she believes were following her in her hometown. The RPD noted that the Appellant testified that she was not sure if it was a coincidence or if it was a similar black truck that she saw at the market. Therefore, the RPD found that the Appellant had not established that she was in fact located in this city. [18] The RPD also noted that the Appellant did not know the identity of the agents of harm and therefore their reach and influence was also unknown. The RPD also noted that during the seven months when the Appellant was living in Guatemala City, she did not see or hear from her agents of harm. The RPD further noted that the Appellant's family had not seen or heard from these men despite her allegation that they knew where her family lives. The RPD concluded that this suggested that the agents of harm did not have the means and motivation to locate the Appellant in the IFA locations. [19] Further the RPD noted that while the Appellant testified that she suspects that the death of her partner was linked to these agents of harm, she did not provide sufficient evidence to establish this link. The RPD noted that the Appellant testified that she remained in constant communication with her partner after his second deportation until his death. The Appellant testified that at no time during this seven-month period did her partner indicate that he had either seen or heard from the alleged agents of harm. The RPD noted that the Appellant provided the Facebook post to corroborate her allegation that her partner died, however this post indicates that he was working as a XXXX at the time of his death. Therefore, the RPD concluded that there was an insufficient evidentiary basis to link the death of the Appellant's partner to the agents of harm. [20] Finally, the RPD noted that the Appellant has not worked for the XXXX that the agents of harm were trying to extort money from for over two years and therefore she would no longer have access to any valuable information that would motivate them to continue to target her. For all of these reasons, the RPD concluded that the Appellant had not established that her agents of harm had the means or motivation to locate her in the IFA locations. [21] The Appellant argues that the RPD failed to consider her evidence that the agents of harm knew that she went to the authorities to make a complaint and therefore were connected to the police. She also argues that the RPD failed to consider the general context of the claim, specifically that extortion threats are common tactics of criminal gangs in Guatemala. The Appellant argues that the RPD generally failed to consider the broader context and objective evidence regarding the prevalence of gang violence in Guatemala. The Appellant highlights a number of excerpts from the objective country conditions evidence underscoring this issue. [22] The Appellant argues that the RPD failed to consider that she and her partner were not living openly in Guatemala City but rather were being cautious and trying to avoid detection. She argues that the RPD's finding that her agents of harm are no longer motivated to locate her because she does not work at the XXXX is flawed and assumes that criminal actors are rational. She further argues that this fails to consider the country conditions documentation that affirms that refusing to adhere to a criminal group's demands or reporting them to authorities is seen as an act of resistance which may lead the group to seek violent revenge as a means of maintaining their control. Therefore, the Appellant argues that she has established that she faces a serious possibility of persecution and a risk to life in the IFA locations. [23] Having independently reviewed the record I agree with the RPD and find that the Appellant has not established that her agents of harm have the means or motivation to locate her in the IFA locations. I agree with the RPD's uncontested finding that the Appellant has not established that her agents of harm did in fact locate her at a market in XXXX XXXX. I agree with the RPD's finding that the Appellant's evidence that she believed the men may have been present at the market did not establish this was the case. I note that the Appellant herself admitted that she was unsure of who she saw that day.8 The Appellant's testimony is that she saw an individual with long hair in a black truck which she believed was the same individual from her hometown. However, she confirmed that the individual neither approached her nor spoke to her. Therefore, I agree with the finding that the Appellant herself was unsure of whether or not she saw her alleged agent of harm in that city. I also find that in the alternative, even if the Appellant correctly identified the man as an agent of harm, there is nothing suggesting that this was more than a chance encounter as there was no attempt to speak to, threaten or harm the Appellant. [24] I also agree with the RPD's uncontested finding that the Appellant had not credibly established that her partner's death was linked to her agents of harm. I agree with the RPD and find that the Appellant's own evidence indicated that her partner was residing in Guatemala City before his death and had not seen or heard from the agents of harm during those seven months. While I accept that this individual died based on the Facebook post presented by the Appellant, I agree with the RPD that the post does not suggest his death was linked to the agents of harm. I note that the post describes him as working as a XXXX and indicates that his cause of death was unknown.9 The Appellant herself testified that she was unsure of how her partner died, although she did not believe the report that he was working as a XXXX was accurate.10 Given the lack of evidence establishing this was a murder or any connection between this death and the agents of harm, I agree that the Appellant had not established that her agents of harm were responsible for her partner's death. The Appellant's argument that she was not located in Guatemala City only because she and her spouse were in hiding is not compelling. Even accepting that the Appellant and her spouse were cautious during their time in Guatemala City, the record still does not establish that, aside from the one time the Appellant was followed in her hometown, the agents of harm have located her or her family. [25] In considering the Appellant's argument that the RPD failed to consider the country conditions context and the objective evidence regarding the influence, prevalence and violent tactics of criminal organizations I find that this argument is not compelling in the Appellant's circumstances. While I agree that the objective evidence clearly does establish that criminal organizations and gangs are prevalent in Guatemala and can be violent, the Appellant herself has not made any allegation that her agents of harm were members or associates of any gang or criminal organization. While I accept that the objective evidence suggests that gangs and criminal organizations engage in extortion, there is also an indication in the objective evidence that criminals generally also engage in this type of behavior.11 There is nothing to suggest that the agents of harm in the Appellant's case were linked to any particular criminal organization. The Appellant herself does not name any particular gang or criminal organization in her evidence. Therefore, while I accept that criminal organizations engage in criminal activities throughout Guatemala, I find that the Appellant has not established that a gang or a criminal organization was behind the attempted extortion in her case. [26] I also agree with the RPD that given the lack of information regarding the identity of the agents of harm the Appellant has not credibly established their means or influence to be able to locate her in the IFA locations. I acknowledge that the Appellant believed that the agents of harm were aware that she reported the attempted extortion to police as she testified that they indicated that they knew this in a threat to her. However, the Appellant's evidence is that the police refused to take a report or take any action against these alleged agents of harm. Therefore, I find that there is no ongoing interest by the police that might motivate the agents of harm to target the Appellant. Even if I were to accept that the agents of harm may have had a connection or a link to a local police official in the Appellant's hometown, I find that the Appellant has not sufficiently established that the agents of harm have a significant influence or connection to law enforcement that would allow them to locate her in the IFA locations. [27] I also agree with the RPD's uncontested finding that the agents of harm have not attempted to make contact with the Appellant's family despite allegedly knowing where they lived. I find that this also suggests a lack of ongoing motivation to locate the Appellant. Finally, I agree with the RPD's finding that the agents of harm lack ongoing motivation to locate the Appellant as she no longer works in the XXXX and no longer has access to the XXXX information that they were seeking. I am not persuaded by the Appellant's argument that in coming to this conclusion the RPD improperly assumed that criminal elements would act rationally and failed to consider that gangs act with vengeance on those who refuse their extortion demands. [28] For these reasons, I find that the Appellant does not face a serious possibility of persecution, or a risk to life or cruel and unusual treatment or punishment, or a danger of torture in the IFA locations. Second prong: The Appellant has not established that it would be unreasonable for her to relocate to Guatemala City and Quetzaltenango [29] The RPD found that the Appellant could reasonably relocate to Guatemala City or Quetzaltenango. The RPD noted that the Appellant alleged that she would be unable to obtain any suitable job as good jobs only went to those with university degrees and that she would only qualify for minimum wage jobs. The RPD acknowledged that the Appellant testified that she would not have family in either location and would have no one to watch her child. However, the RPD noted that the Appellant did concede that daycare was available in the IFA locations, but she would not want to place her child in daycare because of a fear that her child would be abused. The RPD found that while there was a presumption of truthfulness, this did not apply to inferences or speculation. The RPD found that the Appellant's assertions as to why she could not relocate to the IFA locations were based on speculation. The RPD found that she had not provided any credible or reliable evidence to establish these assertions and found that she had not demonstrated that the absence of family members would jeopardize her life and safety in these cities. The RPD also found that the Appellant failed to demonstrate that she would be unable to earn a living wage in the IFA locations. The RPD concluded that the Appellant, being an individual with a college education and over six years work experience as a XXXX XXXX, would be able to earn a living in the proposed IFA locations. [30] The Appellant argues that she did provide evidence regarding the hardship in relocating to the IFA locations. She highlights that she testified about the difficulty of getting a decent paying job and that she was only able to get her previous job as a XXXX XXXX because it was in her small hometown. She argues that her testimony of her lived experience should not be discounted simply because she did not provide objective evidence about her concerns. The Appellant also argues that there is widespread gender discrimination and violence in Guatemala which had to be considered in assessing the reasonableness of proposing a single mother who was previously the victim of extortion threats to relocate on her own. [31] After independently reviewing the record I agree with the RPD. I find that the Appellant has failed to establish that it would be unreasonable for her to relocate to either IFA location. I agree with the RPD that while the Appellant indicated that she believed she would be unable to obtain a job in Guatemala City she failed to provide any evidence to support this assertion. While I accept that the Appellant's testimony about her lived experience is relevant, her testimony is that she only obtained her job as a XXXX XXXX in her particular hometown because it was small and that she believed it would be difficult to obtain a similar job in Guatemala City. I agree with the RPD that the Appellant's speculation is insufficient for her to establish that relocation would be unduly harsh. I agree with the RPD that the Appellant's significant work experience as a XXXX XXXX, regardless of the reason that she was able to obtain her position initially, would assist her in relocating and establishing herself. [32] While I acknowledge that the Appellant states that there is widespread gender discrimination and violence in Guatemala, I find that she fails to point to anything in the objective evidence that would establish that the conditions in the IFA locations are such that they would be a risk to her life or her security. While there is an indication in the objective evidence that Guatemala is a patriarchal society, there is also an indication in the objective evidence that women who are single can own property, establish farms and obtain employment generally.12 [33] I find that the Appellant's arguments regarding general safety in the IFA locations is a general statement without a direct connection to her personal circumstances. The Federal Court has confirmed that generalized risk of harm does not render an IFA unreasonable.13 The Appellant does not point to anything in the country conditions evidence that supports her assertion that she would be unable to safely relocate to the IFA locations as a single woman. I find that her concerns around childcare are insufficient to render relocation unduly harsh given her concession that childcare is available. After considering the objective evidence I find that the Appellant has not established that relocation would be unreasonable. Therefore, I find that the Appellant has a viable IFA in Guatemala City and Quetzaltenango. CONCLUSION [34] I dismiss the appeal and pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act, confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) J. Lourenço J. Lourenço May 11, 2021 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, [2016] 4 FCR 157, at para 103. 2 Exhibit P-2, Appellant's Record, at p. 58. 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 4 Transcript of November 21, 2019 RPD Hearing, at p. 4. 5 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 6 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), 1993 CanLII 3011 (FCA), [1994] 1 FC 589. 7 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Guatemala (30 April 2019), item 1.3. 8 Transcript of November 21, 2019 RPD Hearing, at pp. 20-21. 9 Exhibit RPD-1, RPD Record, Exhibit 6, at p. 122. 10 Transcript of November 21, 2019 RPD Hearing, at pp. 27-28. 11 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Guatemala (30 April 2019), item 7.7, at p. 17. This document is also found in the current NDP for Guatemala (23 April 2021) at item 7.7. 12 Exhibit RPD-1, RPD Record, Exhibit 3, NDP for Guatemala (30 April 2019), item 5.2. 13 Hamdan v. Canada (Immigration, Refugees and Citizenship), 2017 FC 643. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VC0-03095 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français