TC3-44783

RAD File / Dossier de la SAR : TC3-44783 TC3-44784 / TC3-44785 / TC3-44786 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Date of decision December 20, 2023 Date de la décision Panel Jo-Anne Pickel Tribunal Counsel for the persons who are the subject of the appeal Clement Osawe Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The Appellants, XXXX XXXX XXXX XXXX XXXX (Ms. XXXX), her spouse, XXXX XXXX XXXX (Mr. XXXX), and their children, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, are citizens of Mexico. They fear that they would be seriously harmed by members of the Cártel Jalisco Nueva Generación (CJNG) if they return to Mexico. [2] Ms. XXXX, her sister XXXX, and their children were kidnapped by a group of individuals in XXXX 2021 while visiting a national park in Morelos state called XXXX XXXX XXXX. The kidnappers took Ms. XXXX, her sister XXXX, and their children to a cabin in the woods where they took all of their possessions, identification cards and bank cards. After some time, the kidnappers received phone calls and ended up leaving. Ms. XXXX, her sister XXXX, and their children ran away and managed to get back home. In XXXX 2021, Ms. XXXX and her children left Mexico for XXXX XXXX XXXX. They stayed there until they flew to Canada in XXXX 2021. Mr. XXXX left Mexico for XXXX in XXXX 2021, approximately three months before the kidnapping of Ms. XXXX and the children. He flew from XXXX to Canada in XXXX 2021. All of the Appellants claimed refugee protection in February 2022. [3] The Refugee Protection Division (RPD) found that the Appellants' account of events was not credible due to their failure to claim protection in the United States, an inconsistency in their evidence regarding how many individuals had kidnapped them, and the speculative nature of their evidence that their attackers were members of the CJNG. DECISION [4] My role is to look at all the evidence and decide if the RPD made the correct decision.1 In my view, the determinative issue is the availability of an internal flight alternative (IFA) for the Appellants in Mérida. PROPOSED NEW EVIDENCE NOT ADMISSIBLE [5] The Appellants have filed as proposed new evidence two news articles that speak to the criminal background of a person who was one of the individuals who kidnapped Ms. XXXX, her sister XXXX, and their children. [6] According to the Law,2 I can only accept evidence that: (i) arose after the RPD decision; or (ii) was not reasonably available at the time of the decision; or (iii) that the appellants could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [7] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.3 [8] The news articles are not admissible as they predate the RPD decision in this case and I do not agree with Counsel that the Appellants could not reasonably have anticipated that they would have to provide evidence regarding the identity and affiliation of their alleged agents of harm. It is well-established that claimants must put their best case forward to the RPD. It is not open to them to seek to supplement the record on appeal with evidence that they reasonably could have provided to the RPD. The identity and criminal affiliations of agents of harm are key issues in relation to which the Appellants and their counsel reasonably should have provided their evidence at the time of the RPD hearing. NOTICE AND RESPONSE [9] I forwarded a Notice to the Appellants, their counsel, and the Minister of Immigration, Refugees, and Citizenship Canada asking why the Appellants would not have a viable IFA in either of the IFA cities identified by the RPD at the hearing: Mérida and Mexico City. I also asked for submissions on whether the Appellants' allegations had a nexus to any of the grounds of persecution listed in the Refugee Convention. The Appellants' counsel replied to my Notice and his response is admissible as it responds to the issue raised in the Notice. The Minister did not respond to my Notice and the time for doing so has passed. ANALYSIS OF MERITS Credibility issues [10] I agree with Counsel that the RPD erred in finding that there were sufficient valid reasons to find the Appellants not credible. As I find that the determinative issue is the availability of a viable IFA for the Appellants in Mérida, I will not address the issue of credibility. I do agree with the RPD that there was little reliable evidence to establish that the persons who kidnapped Ms. XXXX, her sister XXXX, and the children were members of the CJNG. However, I am prepared to assume, without finding, that the Appellants have provided sufficient reliable evidence to establish this fact on a balance of probabilities. In my view, even assuming all of the Appellants' allegations are true, they would have a viable IFA in Mérida for the reasons set out below. Allegations against the CJNG have no nexus to the Refugee Convention [11] The Appellants' allegations against the CJNG have no nexus (link) to any of the grounds of persecution listed in the Refugee Convention. Despite being asked to do so, the Appellants' counsel did not make any submissions on the issue of whether the Appellants' allegations have a nexus to the Convention. To be considered a "Convention refugee," a claimant must establish that their allegations have a nexus to one of the five grounds listed in the Convention: race, nationality, political opinion, religion, membership in a particular social group. I find that the Appellants' allegations are allegations of criminality that have no nexus to any of the grounds listed in the Refugee Convention. [12] Therefore, The Appellants' claim must be assessed under section 97 of the Immigration and Refugee Protection Act (IRPA), the section that addresses, "persons in need of protection." To successfully make out a claim under that section, the Appellants have the onus of establishing that it is more likely than not that, if they return to Mexico, they would be subjected personally to a risk of serious harm, including in the IFA cities.4 The Appellants have a viable IFA in Mérida The Appellants would not face a likelihood of serious harm in Mérida [13] The legal test for assessing whether a claimant has a viable IFA has two prongs. Under the first prong, the decision maker assesses whether, on a balance of probabilities, the claimant would face a serious possibility of persecution in the IFA location or a likelihood that they would be subjected personally to any of the types of harm that would make them persons in need of protection there. [14] Assessments of whether claimants would have a viable IFA in a different part of their home country generally turn on whether the agents of harm would have both the means and motivation to track them down and persecute or seriously harm them in the IFA location. No motivation to track the Appellants to Mérida [15] I accept that, if the kidnappers are members of the CJNG, they would have the means to locate the Appellants in Mérida if they were motivated to do so. However, the evidence does not establish that it is more likely than not that the CJNG would be motivated to track the Appellants to Mérida if they were to relocate there. [16] When the RPD asked Ms. XXXX if the Appellants could relocate to Mérida or Mexico City, Ms. XXXX replied that she would not feel safe in the IFA cities because the CJNG is present all over Mexico. When the RPD asked her why the CJNG would be motivated to locate the Appellants in Mérida or Mexico City, Ms. XXXX replied that it was because she "recognized him [the lead kidnapper] directly at the prosecutor's office."5 She also alleged that the police cut off communications with her when she identified the CJNG member involved in her kidnapping. Similarly, in his response to my Notice, Counsel argues that Ms. XXXX's complaint to the police would make the Appellants prime targets for the CJNG. [17] Ms. XXXX and her sister XXXX filed a complaint of aggravated express kidnapping with the police after their kidnapping. After they made the complaint, Ms. XXXX conducted some online searches and believes that she was able to identify one of the individuals who had kidnapped her. She sent a photo of the person by WhatsApp to the police officer who was assigned to her case asking if he thought that those who kidnapped her and her children belonged to the CJNG, as the CJNG member whose photo she sent to him had many features of the person who gave orders on the day she was kidnapped.6 Ms. XXXX testified that the police officer cut off communication with her after she sent him the photo. However, the WhatsApp exchange she filed with the RPD shows that, within two minutes of her sending the photo to the police, the officer said "Good evening" and the print out indicates that the message that followed was deleted.7 In these circumstances, I do not find that the documentary evidence supports Ms. XXXX's claim that the police cut off all communication with her after she sent a photo of a person who she believed had many features of the person who kidnapped her, her sister XXXX, and their children. [18] Even if Ms. XXXX and her sister XXXX filed a complaint with the police, there was no evidence that the police actually caught the kidnappers or that they were connected to them. In any event, Ms. XXXX's evidence about the complaint she made must be considered in the context of the rest of the evidence to determine whether the kidnappers or the CJNG likely would have the motivation to track down and seriously harm the Appellants if they relocated to one of the IFA cities. [19] I agree with the RPD that the evidence does not establish that the Appellants were personally targeted in advance by the kidnappers. Instead, the evidence establishes that it is more likely than not that the Appellants were targets of opportunity. The news articles submitted by the Appellants make it clear that the Mexico-Cuernavaca federal highway is one of the most dangerous highways in Mexico due to the high number of assaults, extortions, and what are called "express kidnappings" along that highway. These forms of criminality also extend to the XXXX XXXX XXXXwhich have become a tourist destination that has served criminals for robberies and violence.8 Express kidnappings are a common modus operandi of criminal groups in Mexico which involves victims being held for a short duration in which they are forced to withdraw money from an ATM or to hand over PIN details.9 Such kidnappings sometimes include assaults or sexual assaults of female victims. [20] In this case, the criminals who kidnapped Ms. XXXX, her sister XXXX, and their children at XXXX XXXX XXXX threatened them with weapons, took their cell phones, identification cards and bank cards, and asked for their PIN numbers before leaving them after several hours. In these circumstances, I agree with the RPD that the kidnapping was likely a crime of opportunity. The fact that the kidnapping of Ms. XXXX and her children was likely a crime of opportunity makes it less likely that the kidnappers would have the motivation to track them to Mérida to seriously harm them than if the kidnappers had targeted Ms. XXXX and her children in a pre-meditated way. [21] In addition, Ms. XXXX's sister XXXX and her children continue to live in Morelos state in Mexico, as do Ms. XXXX's parents and other brothers and sisters. There was no evidence that the kidnappers have approached any of them to ask about the Appellants' whereabouts. In particular, there was no evidence that the kidnappers have approached Ms. XXXX's sister XXXX who was kidnapped with her at XXXX XXXX XXXX and who filed the police complaint in conjunction with Ms. XXXX. This is despite the fact that the kidnappers took her identification cards on the day in question.10 In the statement Ms. XXXX filed from her sister XXXX, the latter makes no mention of being tracked down by the kidnappers. She only said that she hopes to reunite with the Appellants in Canada soon and that she is still afraid that the kidnappers could find her and her children at any moment. [22] The evidence in the National Documentation Package (NDP) for Mexico indicates that cartels will often approach and threaten family members in order to find their targets.11 Likewise, the Federal Court has made clear in several decisions that the failure of a cartel to approach a claimant's family members to determine their whereabouts provides a good indication that the cartel does not have the motivation to locate the claimant. I agree with this line of reasoning.12 The fact that the kidnappers have not approached Ms. XXXX's sister, who was kidnapped with her and who filed the police complaint with her, gives rise to a significant inference that they would lack the motivation to track the Appellants down and seriously harm them if they relocate to Mérida. [23] As a final point, I have taken into consideration that Ms. XXXX alleged in her written narrative that her husband received calls in XXXX 2021 from unknown numbers seeking to extort him and that she believes she was followed at some point before she left Mexico by someone who reminded her of one of the kidnappers. In my view, there was insufficient reliable evidence to establish that the phone calls or the person in the car were part of the group of people who kidnapped Ms. XXXX and her children in XXXX 2021. Even if they were, in light of the rest of the evidence detailed above, this evidence was insufficient to establish that the kidnappers or the CJNG would have the motivation to track down the Appellants and seriously harm them if they relocated to Mérida. [24] For all of the above reasons, the Appellants have failed to establish that they would face either a serious possibility of persecution or a likelihood of serious harm if they relocated to Mérida. Not unreasonable to expect the Appellants to relocate to Mérida [25] Under the second prong of the IFA test, a decision maker must assess whether it would be unreasonable in all the circumstances to expect a claimant to relocate to an IFA city. The threshold for unreasonableness is very high and requires that a claimant's life and safety be in jeopardy.13 [26] I do not agree with Counsel's argument based on the assumption that the Appellants are a female-headed household. There was no evidence in this case that would establish that Mr. XXXX would not be returning to Mexico with the other Appellants as Mexico is the only country in which Mr. XXXX has permanent legal status is Mexico. [27] I also do not accept Counsel's arguments based on the high crime rate and the high rate of violence against women in Mexico generally. Such generalized country-wide conditions do not establish that the Appellants' lives and safety would likely be in jeopardy if they relocated to Mérida. Among other things, I note that, even if Yucatán state (where Mérida is located) is not exempt from the level of criminality present in all of Mexico, it is rated as the most peaceful state in Mexico.14 Moreover, the rate of femicide in Yucatán state was the lowest in Mexico for 2020 which is one of the latest years for which statistics exists in the record.15 Therefore, I do not find that the evidence supports Counsel's argument that it would be unreasonable to expect the Appellants to relocate to Mérida due to the general level of criminality and the existence of violence against women in Mexico. [28] In my view, the Refuge Appeal Division (RAD) decision cited by Counsel in the Appeal Memorandum is distinguishable. The claimants in that case were also a single woman and her children whose vulnerability was increased due to their impoverished conditions. It was on this basis that the RAD held that "Based on the particular circumstances of the Appellants, I find that they do have a well-founded fear of persecution due to their increased vulnerability as single impoverished women/female children."16 The facts of this case differ significantly than those in the case cited by Counsel. Ms. XXXX is not a single impoverished woman. She is married and she is well educated with degrees in XXXX, XXXX and XXXX. Mr. XXXX has a degree in XXXX and worked in that field and also worked as a XXXX. The Appellants' profiles simply do not match the profiles of the appellants in the RAD case described above. [29] Finally, I do not agree with Counsel that the Appellants would be exposed to "double jeopardy" if they relocate Mérida as they have already fallen victim to kidnapping. It is unfortunate that the Appellants had to go through what they went through in XXXX 2021. However, the fact that they experienced a kidnapping does not make it more likely than not that they would experience another one if they were to relocate to Mérida. [30] Although not mentioned by Counsel in his response to my Notice, I have taken into account the psychological reports submitted by the Appellants to the RPD.17 The reports indicate Ms. XXXX has been dealing with XXXX and XXXX XXXX XXXX XXXX XXXX and her children have been experiencing XXXX XXXX due to what happened to them in Mexico. The reports also state that they have experienced XXXX and XXXX about their current situation and immigration status in Canada. The reports from the psychotherapist who treated Ms. XXXX and her children stated that their symptoms will reappear if they return to Mexico. However, there is no indication in the reports that the psychotherapist considered a scenario whereby the Appellants would relocate to an IFA city that was safe for them. The psychologist who submitted a report for all of the Appellants stated that they need to develop in an environment that provides them with security and tranquility. There is nothing in the report that would suggest that the Appellants' lives and security would be in jeopardy if they relocate to Mérida. [31] For all of the above reasons, it would not be unreasonable to expect the Appellants to relocate the Mérida. Compelling reasons exception does not apply [32] In his response to my Notice, Counsel argued, for the first time in this proceeding, that the Appellants should be granted protection under the compelling reasons exception found in subsection 108(4) of the IRPA. I do not agree. [33] When invoking subsection 108(4) of IRPA, appellants must demonstrate that they qualified as a Convention refugee or a person in need of protection when they left their country, but that the reasons have ceased to exist based on a change in circumstances in their country.18 [34] Caselaw indicates that the compelling reasons exception only arises first, where a person meets the definition of a Convention refugee or a person in need of protection at the time of their departure from their country of nationality and second, where the reasons for which the person sought protection "have ceased to exist." Therefore, there must be a change in circumstances to trigger the consideration of this exception.19 [35] In the current case, the Appellants would have had a viable IFA in Mérida when they left that country. As such, there is no need to consider compelling reasons as the IFA was available at the time of the Appellants' departure from Mexico. Moreover, Counsel has not referenced a change in circumstances that would give rise to the compelling reasons exception. As a final point, in order for the compelling reasons exception to apply, appellants must have experienced, at a minimum, circumstances that are exceptional or extraordinary compared to other refugees.20 I am sure that it would have been traumatic for Ms. XXXX and her children to have been kidnapped for several hours, to have one's identification, cell phones, etc. taken, and to be threatened at gunpoint. However, unfortunately, the incidents experienced by Ms. XXXX and her children are not exceptional or extraordinary as compared to the situations faced by many other refugee claimants. For all of the above reasons, the compelling reasons exception does not apply in this case. CONCLUSION [36] I have considerable empathy for Ms. XXXX and her children due to their experiences before they left Mexico. However, my role is limited to determining whether the RPD was correct to find that the Appellants do not meet the conditions to be declared refugees or persons in need of protection. For the reasons set out above, I find that the RPD's ultimate conclusion was correct. As a result, I must deny the appeal and confirm the RPD's decision, on other grounds, that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Jo-Anne Pickel Jo-Anne Pickel December 20, 2023 Date 1Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, as amended, subsection 110(4). 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Raza v. Canada (Citizenship and Immigration), 2007 FCA 385. 4 IRPA, s. 97(1)(b)(ii). 5 Transcript of RPD hearing, p. 23. 6 RPD Record, WhatsApp exchange between Ms. XXXX and the police, Exhibit 5, document 23. 7 Ibid. 8 RPD Record, "They demand justice for 3 young people found dead in Huitzilac" and "Huitzilac, the "backyard" for criminals", Exhibit 7, documents 7 and 8. 9 National Documentation Package, Mexico, 29 September 2023, Tab 7.11: KRE in Mexico. KRE Global Monitor. December 2016 - March 2017. Liberty Speciality Markets; red24. 24 March 2017, p. 4. 10 RPD Record, Statement of XXXX, Exhibit 5, document 17. 11 National Documentation Package, Mexico, 29 September 2023, Tab 7.8: ?The crime situation in Mérida, Mexico City, Campeche, and Cabo San Lucas; organized crime and cartel groups active in these cities (as well as Yucatán state, State of Campeche, and Baja California Sur); the ability and motivation of organized ... Immigration and Refugee Board of Canada. 8 September 2021. MEX200732.E. 12 Ojeda Escobar v. Canada (Citizenship and Immigration), 2022 FC 1453 at para. 18; Leon v. Canada (Citizenship and Immigration), 2020 FC 428; Rodriguez Llanes v. Canada (Citizenship and Immigration), 2013 FC 492 at para 10; Chavez Perez v. Canada (Citizenship and Immigration), 2021 FC 1021 at para. 10. 13 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 (CA). 14 National Documentation Package, Mexico, 29 September 2023, Tab 1.5: ?Mexico Peace Index 2023: Identifying and Measuring the Factors that Drive Peace. Institute for Economics & Peace. May 2023. 15 National Documentation Package, Mexico, 29 September 2023, Tab 5.22: Justice on Trial: Failures in criminal investigations of feminicides preceded by disappearance in the state of Mexico. Amnesty International. 20 September 2021. AMR 41/4556/2021, p. 15. 16 X (Re), 2019 CanLII 96813 (CA IRB) at para. 33. 17 RPD Record, Psychological reports, Exhibit 6. 18 Zuniga v. Canada (Citizenship and Immigration), 2020 FC 488 at para. 18. 19 Jairo v. Canada (Citizenship and Immigration), 2014 FC 622. 20 Ismail v. Canada (Citizenship and Immigration), 2016 FC 650 at para. 15. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC3-44783 TC3-44784 / TC3-44785 / TC3-44786 RAD.25.02 (August 20, 2021) 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 (August 20, 2021) Disponible en français