TC3-14070

RAD File / Dossier de la SAR : TC3-14070 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Date of decision July 14, 2023 Date de la décision Panel Caitlin Maxwell Tribunal Counsel for the person who is the subject of the appeal Marcela Donaji Gonzalez-Rodriguez Paralegal 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] These are my reasons for dismissing the appeal of XXXX XXXX XXXX XXXX XXXX ("Appellant"). I confirm the decision of the Refugee Protection Division ("RPD") that the Appellant is neither a Convention refugee nor a person in need of protection. [2] The Appellant is a citizen of Mexico from XXXX XXXX XXXX XXXX, in the municipality of XXXX XXXX, Veracruz. He claims a fear of harm from the Los Zetas cartel. The RPD accepted that Los Zetas had threatened the Appellant with extortion, leading to the closure of his XXXX XXXX business, and that individuals associated with the cartel had stolen items from his home. However, it found there was insufficient evidence to establish an ongoing motivation on the part of the cartel to find and harm him, noting that there had not been any threats since 2017. The panel ultimately determined the Appellant had a viable internal flight alternative ("IFA") in Cabo San Lucas. The Appellant argues that the RPD erred in its credibility findings and in determining there was an IFA. SCOPE OF THE APPEAL [3] My role is to look at all the evidence and decide if the RPD made the correct decision.1 The Appellant has not filed any new evidence on appeal, nor has he requested an oral hearing.2 ANALYSIS [4] The determinative issue on appeal remains the availability of an IFA in Cabo San Lucas. [5] I agree with the RPD that there is not a nexus to a Convention ground, and that this case is properly considered under s. 97(1) of the Immigration and Refugee Protection Act ("IRPA"). [6] The test for IFA is two-pronged. The Board must be satisfied on a balance of probabilities that there is no serious possibility of persecution or personal risk to life, torture, or cruel and unusual treatment or punishment in the proposed location,3 and conditions in the IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for them to seek refuge there.4 Both prongs of the test must be satisfied for a viable IFA to be established. Once the issue is raised, the onus is on the claimant to demonstrate that they do not have a viable IFA. Credibility concerns not determinative; RPD did not err in finding lack of motivation [7] The panel accepted the Appellant was generally credible; however, it drew a negative inference from his failure to mention he had filed a police report in his Basis of Claim ("BOC") narrative and ultimately rejected the police report tendered because of the omission.5 The panel also drew a negative inference from the Appellant's failure to mention in his narrative that he heard from his family members that individuals had been asking about him in his hometown after he fled, and that he believes these people are from Los Zetas. [8] The Appellant argues on appeal that the panel was overly microscopic and erred in requiring corroborative evidence. I agree the panel was overzealous in rejecting the police report based on the Appellant's failure to mention it in his narrative. However, even accepting that he filed a report in XXXX 2017 regarding the threats he faced from Los Zetas, I do not find this sufficient to establish an ongoing motivation on the part of the agent of harm. [9] Similarly, even if individuals were asking about the Appellant after he left his hometown, this does not establish that Los Zetas would be motivated to pursue him in a new location. The Appellant testified that his family members heard about the inquiries indirectly from others in their small community.6 He also indicated that as a former XXXX XXXX, he is recognizable.7 However, even accepting that his family members had heard that people were asking about him after he left, the Appellant has not presented any evidence that they were asked directly about him or have been threatened. Additionally, the Appellant's partner and son, who relocated with him to Xalapa following the threats in XXXX 2017, continued to live there for several years without issue before coming to Canada.8 On a balance of probabilities, I find the Appellant has failed to establish Los Zetas remains interested in pursuing him in the proposed IFA. [10] The Appellant also made submissions about the ability of cartels to track individuals of interest. However, the RPD ultimately accepted that Los Zetas would be able to track the Appellant if it remained interested in him, citing sources in the National Documentation Package ("NDP").9 I agree, and find the deciding factor continues to be a lack of motivation on the part of the agent of harm. Appellant not challenging RPD's findings on reasonableness of IFA [11] The Appellant has not challenged the RPD's findings on the second prong of the test for IFA, whether it would be reasonable in his particular circumstances to relocate. In my independent assessment, having reviewed the record, I see no reason to depart from the panel's findings on the second prong. [12] Relocation will always involve some level of hardship. The threshold to find an IFA objectively unreasonable is very high and requires, at a minimum, concrete evidence of adverse conditions which would jeopardize the Appellant's life and safety.10 The Appellant bears the onus of establishing that it is unreasonable to expect him to seek safety in a different part of the country. In this case, he has failed to do so. I agree with the RPD that the Appellant has not met his onus to demonstrate he does not have a viable IFA in Cabo San Lucas. CONCLUSION [13] For the reasons set out above, I find the Appellant's claim has not been established. 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) "Caitlin Maxwell" Caitlin Maxwell July 14, 2023 Date 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 2 Appellant's Record, Written statement, at p. 16. 3 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.), at 710. 4 Ibid., at 709, 711. 5 RPD Record, Reasons and Decision, at paras. 17-22. 6 RPD Record, Reasons and Decision, at para. 25; Transcript of RPD hearing at p. 12, lines 11-15. 7 Ibid. 8 RPD Record, Reasons and Decision, at para. 23. Transcript of RPD hearing, at p. 10, lines 42-46. The Appellant testified at his hearing in February 2023 that they had arrived in Canada XXXX XXXX earlier: see Transcript, at p. 6, lines 34-36. 9 RPD Record, Reasons and Decision, at paras. 37-38. 10 Singh v. Canada (Citizenship and Immigration), 2013 FC 988, at para. 40, citing Ranganathan v. Canada (Minister of Citizenship and Immigration) (FCA), 11 Imm LR (3d) 142 at para. 15. --------------- ------------------------------------------------------------ --------------- RAD File / Dossier de la SAR : TC3-14070 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