MC0-10276

RAD File / Dossier de la SAR : MC0-10276 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision June 14, 2021 Date de la décision Panel Joseph W. Richards II Tribunal Counsel for the person who is the subject of the appeal Stewart Istvanffy 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] I dismiss this appeal. [2] XXXX XXXX XXXX XXXX (the Appellant) is a citizen of Mexico. [3] The Appellant made a noise complaint against his neighbours on XXXX XXXX, 2018. He alleges that he was subsequently attacked and threatened with death if he did not leave his home. The Appellant arrived in Canada on XXXX XXXX, 2018. [4] The Refugee Protection Division (RPD) rejected the Appellant's claim, finding viable internal flight alternatives (IFAs) in Mérida (Yucatan) and Campeche. The RPD found that multiple allegations lacked credibility, relating to the identity of the agents of harm, the encounter of the Appellant's brother with the agents of harm, and the surveillance of the Appellant's family by the agents of harm. Crucially, the Appellant failed to mention in his Basis of Claim (BOC) the alleged attackers' ties to the Jalisco New Generation Cartel (Cártel de Jalisco Nueva Generación or CJNG) and did not provide a reasonable explanation for the omission. [5] The Appellant submits that the RPD erred by basing its negative credibility findings on irrelevant considerations that are insufficient to warrant the rejection of the Appellant's claim. He further submits that Mérida and Campeche are not viable IFAs due to the expanding influence of the CJNG in those regions. The Appellant is requesting to admit new evidence and to hold an oral hearing. [6] The determinative issues in this appeal are credibility and IFA. After reviewing the evidence, I find that due to the lack of credibility of significant components of the Appellant's allegations, the Appellant has failed to establish that the proposed IFAs are either unsafe or unreasonable. On a balance of probabilities, I find that Mérida and Campeche are viable IFAs for the Appellant. DECISION [7] I dismiss the appeal. The RPD was correct in finding that the Appellant is neither a Convention refugee nor a person in need of protection. BACKGROUND [8] The Appellant appeared before the RPD on two occasions with two different Panels. [9] The first appearance occurred on August 23, 2019. The hearing ended prematurely, as the Panel did not have a complete record. For instance, certain documents were not accompanied by an English translation. The Panel also alluded to the lack of any reference to the CJNG in the Appellant's BOC narrative.1 [10] The second appearance took place on September 3, 2020 by way of videoconference. On that date, the substance of the Appellant's claim was heard. [11] The Appellant was represented by the same legal representative on both occasions. This representative is also the Appellant's Counsel in the present appeal. NEW EVIDENCE The evidence presented by the Appellant is rejected [12] According to the law,2 I can only accept evidence that: (i) arose after the RPD's decision; or (ii) was not reasonably available at the time of the decision; or (iii) that the Appellant could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [13] If none of these criteria are satisfied, the inquiry ends there; the evidence cannot be admitted. If the evidence meets one or more of these requirements, I must then decide if the evidence is credible, relevant, and new.3 The evidence will not be considered if it lacks credibility as to its source and the circumstances in which it came into existence or if it is incapable of proving or disproving a relevant fact to the refugee claim.4 The evidence will also be excluded if it fails to prove a new fact, event, or circumstance arising after, or unknown at the time of, the RPD hearing. [14] The Appellant bears the responsibility of making full and detailed submissions about how the proposed new evidence meets the requirements of subsection 110(4) of the Immigration and Refugee Protection Act (IRPA) and how that evidence relates to the claim. [15] In this case, the Appellant has submitted the following: (i) an undated article by James C. Hathaway and Michelle Foster entitled, "Internal Protection/Relocation/Flight Alternative as an Aspect of Refugee Status Determination"; and (ii) a July 2003 IFA guideline published by the United Nations High Commissioner for Refugees (UNHCR).5 [16] An appeal to the Refugee Appeal Division (RAD) is not an opportunity to correct a deficient record. For instance, in the Appellant's Declaration, Counsel briefly suggests that the July 2003 document supports the argument that it is impossible to find safe IFAs in Mexico.6 However, the Appellant has not explained how the new evidence meets any of the statutory criteria set out at subsection 110(4) of the IRPA. [17] It is not my role to make arguments on the Appellant's behalf. This is especially the case when the Appellant is represented by Counsel. [18] As a result, I find that the new evidence presented by the Appellant is inadmissible. An oral hearing is not permitted [19] The Appellant has also requested an oral hearing. Since I have not admitted any new evidence, an oral hearing is not permitted, pursuant to subsection 110(6) of the IRPA. ANALYSIS [20] My role is to look at all of the evidence and decide if the RPD made the correct decision.7 The RPD did not err in its credibility assessment [21] After reviewing the documentary evidence, the RPD's Reasons, and the Appellant's Record, it becomes clear that the outcome of this appeal turns on the credibility of certain specific allegations of the Appellant. The RPD did not find that the Appellant's credibility was generally impugned. I have not reached that conclusion either. [22] The RPD instead called into question the evidence concerning the profile of the agents of harm and the nature of the forward-facing risk of harm. The Appellant submits that the RPD focussed on minor discrepancies that do not warrant a negative credibility finding. I disagree. I find that the RPD correctly assessed the Appellant's credibility. [23] The Appellant failed to identify in his BOC that the alleged agents of harm were members of the CJNG or even affiliated with a drug trafficking organization. The Appellant attributed this omission to changes in his legal representation. He alleges that he submitted a modified, more detailed narrative to a previous representative, who worked at the same office as his current Counsel. [24] The Panel gave Counsel one week to retrieve the alleged e-mail and submit it to the Tribunal. The e-mail was not provided. The Appellant did not offer a reasonable explanation as to why it was not retrieved. [25] I further note that this BOC omission was brought to the Appellant's attention at his first RPD appearance on August 23, 2019. At that time, he explained that he did not have enough time to refer to the cartel in his narrative.8 However, the BOC form was signed on November 9, 2018, over nine months before the August 23, 2019 hearing date. The Appellant had ample opportunity to modify his narrative, as needed.9 Furthermore, the Appellant did not attempt to modify the narrative in the over one-year interval between his first and second appearances at the RPD. At the beginning of both appearances, he confirmed that his BOC was complete and true.10 [26] The omission is significant because it addresses the nature of the Appellant's prospective risk of harm: Was the Appellant attacked in XXXX 2018 by an unknown group of violent individuals or was he targeted by a specific and renowned Mexican drug cartel? The answer would necessarily inform my findings on the capacity and motivation of the agents of harm, which are core elements of the IFA analysis. Therefore, failing to make even a brief allusion to the cartel in his BOC form, without a reasonable explanation, seriously undermines the Appellant's credibility. An adverse credibility inference was warranted. [27] A glaring discrepancy also arises from another BOC omission. The Appellant testified that members of the CJNG directed death threats to him through his brother. The Appellant could not specify a date when the incident happened. However, he stated that he was informed approximately one year after his arrival in Canada, that is, around XXXX 2019. The Appellant did not reasonably explain why such an important event (a death threat) was not the subject of a BOC amendment, anytime prior to the September 2020 hearing date.11 As mentioned above, the Appellant attested to the accuracy of his BOC at the beginning of the RPD hearing. For these reasons, I find that the incident with his brother did not occur, as alleged. [28] I am mindful that the evidence from the Minister of Immigration, Refugees and Citizenship Canada (Minister) establishes that the Appellant sought authorization to come to Canada on XXXX XXXX, 2018, eight days prior to the alleged initial encounter with members of the CJNG on XXXX XXXXth.12 The Appellant testified that this sequence of events was coincidental; a colleague applied for the travel authorization on the Appellant's behalf to enable future travel to Canada, as a tourist.13 I do not find that this explanation is reasonable, given his initial testimony that, before deciding, on XXXX XXXX, 2018, to claim asylum in Canada, Japan was the only place he thought of travelling to.14 The proximity of the Appellant's travel authorization thus detracts from the assertion that his arrival in Canada was solely based on a threat-induced fear.15 [29] I have considered the supporting statements that the Appellant presented to the RPD.16 I do not find that they are sufficiently reliable to overcome the serious negative credibility findings, mentioned above. None of the statements describe how the declarants came to know that the agents of harm are members of a drug cartel. They also do not specifically reference the CJNG. Thus, I find that the statements lack probative value and do not assist in establishing the profile of the agents of the harm. Mérida and Campeche are safe and reasonable IFAs [30] Having failed to establish that he was harmed or threatened by the CJNG or that the CJNG have the capacity and motivation to pursue him if returned, I am left with assessing the Appellant's residual profile. I must determine whether relocating to Mérida or Campeche would be safe and reasonable. After reviewing the evidence, I agree with the RPD and find that both locations constitute viable IFAs. [31] It is uncontested that there are general risks of violence throughout Mexico. However, the risks are mostly tied to criminal groups. Targets are selected based on perceived wealth, vulnerability, and inattentiveness. Yucatan (the state where Mérida is located) as well as Campeche are known as the safest states in Mexico. Police and emergency response are available in urban areas.17 [32] I have considered the Appellant's evidence regarding the expanding influence of the CJNG. However, absent credible evidence that the cartel is pursuing the Appellant, I do not find that its mere presence in Mérida or Campeche is of such significance to make either city unsafe or to make relocation unduly harsh for someone in the Appellant's circumstances. [33] In particular, I note the following: (i) Other than his fear of the CJNG, the Appellant did not provide any other reasons for why he could not relocate to the proposed IFAs.18 (ii) Despite having only XXXX XXXX of education, the Appellant managed to remain employed in Mexico from XXXX 2013 to XXXX 2018. He has experience in XXXXand XXXX and, mostly recently, in XXXX XXXX XXXX.19 (iii) The Appellant's family (e.g., his wife and two children) continues to live in safety in Aguascalientes, Mexico. This is the same city that the Appellant fled in 2018.20 There is insufficient credible evidence to find, on a balance of probabilities, that his family has been threatened or harmed, either before or after his departure. [34] As a result, I find that, on a balance of probabilities, Mérida and Campeche are safe and reasonable IFAs for the Appellant. CONCLUSION [35] I dismiss the appeal and confirm the decision of the RPD that the Appellant is neither a Convention refugee nor a person in need of protection. (signed) Joseph W. Richards II Joseph W. Richards II June 14, 2021 Date 1 Transcript of the RPD Hearing, August 23, 2019, at p. 6 (lines 46-48), p. 8 (lines 43-45), p. 9 (lines 20-46), p. 10 (lines 23-37). 2 Subsection 110(4) of the IRPA. 3 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para. 64; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 4 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385, at para. 13. 5 See Exhibit P-2, Appellant's Record, at pp. 11-21. 6 Exhibit P-2, Appellant's Record, at p. 1. 7 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93; Rozas Del Solar, Paola v. M.C.I. (F.C., no. IMM-2645-17), Diner, November 14, 2018, 2018 FC 1145. 8 Transcript of the RPD Hearing, August 23, 2019, at p. 11 (lines 5-6). 9 Exhibit RPD-1, RPD Record, at p. 22. 10 Transcript of the RPD Hearing, August 23, 2019, at p. 6 (lines 16-29); Transcript of the RPD Hearing, September 3, 2020, at p. 4 (lines 29-34). 11 See Transcript of the RPD Hearing, September 3, 2020, at pp. 9-11. 12 Exhibit RPD-1, RPD Record, at pp. 195-196. 13 Transcript of the RPD Hearing, September 3, 2020, at p. 10 (lines 32-46), p. 24 (lines 5-40). 14 Ibid., at p. 21 (lines 27-49), p. 22 (lines 5-29). 15 See Exhibit RPD-1, RPD Record, at p. 14 (paragraph 7). 16 See ibid., at pp. 185-188. 17 National Documentation Package for Mexico (March 31, 2020), item 7.14, US Overseas Security Advisory Council, "Mexico. 2019 Crime and Safety Report: Mérida", April 3, 2019. 18 Transcript of the RPD Hearing, September 3, 2020, at p. 23 (lines 25-28). 19 Exhibit RPD-1, RPD Record, at pp. 56-57. 20 See Exhibit RPD-1, RPD Record, at p. 19; Transcript of the RPD Hearing, September 3, 2020, at p. 25 (lines 43-45), p. 26 (lines 5-12). See also the statement of the Appellant's father-in-law: RPD Record, at p. 187. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-10276 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