MC0-02837

RAD File No. / No de dossier de la SAR : MC0-02837 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 Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision March 12, 2021 Date de la décision Panel Mokhtar Lamani Tribunal Counsel for the person who is the subject of the appeal Felipe Morales 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 XXXX is a citizen of Mexico. He is appealing the Refugee Protection Division (RPD) decision dated January 21, 2020, rejecting his refugee protection claim on the basis that he has an internal flight alternative (IFA) in the cities of Merida and Tlaxcala, Mexico. [2] The appellant alleges that the RPD erred: a. in basing its decision on a document that does not exist or is no longer in the National Documentation Package (NDP) on Mexico (Response to Information Request [RIR] MEX 103776 E);1 and b. in disregarding almost all of Tab 13.1, which the appellant cited as an authoritative source in his favour.2 [3] The appellant is requesting that the Refugee Appeal Division (RAD) refer his case to a differently constituted RPD panel.3 [4] The appellant did not provide any new evidence, but is requesting that an oral hearing be held before the RAD.4 [5] The determinative issue before the RAD, as it was for the RPD, is whether the appellant has an IFA in Merida or Tlaxcala. DETERMINATION [6] The RAD confirms the RPD's determination and dismisses the appeal. BACKGROUND [7] According to his Basis of Claim Form, the appellant, who was a XXXX in the state of Chiapas, alleges that rebels from the Zapatista Army of National Liberation (EZLN) forcibly took over his farmland (two hectares) on or about March 10, 2019. [8] The appellant allegedly asked the authorities for help, but was told that they do not get involved in EZLN matters because they fear reprisals. [9] The appellant left Mexico for Canada on XXXX XXXX, 2019, and claimed refugee protection. Holding an oral hearing before the Refugee Appeal Division [10] The RAD appeal process is generally a paper-based process. Prior to holding an oral hearing, new evidence must be accepted on appeal in accordance with subsection 110(4) of the Immigration and Refugee Protection Act, and the new evidence, if accepted, must raise a serious issue with respect to the credibility of the appellant, must be central to the decision with respect to the refugee protection claim, and would justify allowing or rejecting the refugee protection claim. [11] Given that no new evidence has been submitted or accepted, there is no cause to hold an oral hearing in this case. STANDARD OF REVIEW [12] The RAD reviews RPD decisions, applying the correctness standard of review after conducting its own analysis of the record. The exception to this rule is where the RPD enjoys a meaningful advantage in assessing credibility.5 That said, the RAD's role is to determine whether, as argued by the appellant, the RPD did indeed err. [13] The RAD applied the correctness standard in this case. ANALYSIS A) Did the Refugee Protection Division rely on a document that does not exist (Response to Information Request MEX 103776 E)? [14] In his memorandum, the appellant argues that the RPD based its decision on a document that does not exist or that is no longer included in the NDP on Mexico dated August 30, 2019, that is, RIR MEX 103776 E. The appellant's counsel states that he went through the NDP and the index of RIRs on Mexico and even search engines several times, but he could not find the document.6 [15] The appellant's counsel states: [translation] "If the document does not exist, it should not be included in the NDP or RIRs and should not be included in the evidence. If a claimant cannot consult the NDP or RIR, he cannot present his case because he does not have all of the evidence."7 [16] With respect, the RAD looked into this matter, and the document in question (RIR MEX 103776.E) does exist and can be found in the database of RIRs in the NDP, at tabs 1 (General Information and Maps), 2 (Human Rights), 7 (Criminality and Corruption), 13 (Nationality, Ethnicity and Race) and 14 (Exit/Entry and Freedom of Movement). [17] Here is an example of a search on the Immigration and Refugee Board of Canada's website, which shows that the document is indeed there and that the appellant's counsel simply did not search properly: [18] In the RAD's view, the first criticism has no merit, and the RPD did not err. B) Did the Refugee Protection Division disregard nearly all of Tab 13.1? [19] The RPD notes that [translation] "according to the objective evidence, the EZLN group's activities are based in the state of Chiapas. It indicates that the Zapatistas remain popular at the local level in Chiapas. In addition, RIR MEX 103776 E states that the Zapatistas have eschewed violence since their initial rebellion...and are concentrating on organization and community work in the state of Chiapas."8 [20] The appellant submits that this statement disregards almost all of the contents of Tab 13.1, and he cites section 1.2 of that document, which states that "30,000 IDPs [internally displaced people] have been living in protracted displacement in Chiapas since the 1994 to 1995 Zapatista conflict...."9 [21] The appellant submits that the RPD's reasoning is flawed and constitutes a palpable and determinative error by the RPD.10 [22] Finally, the appellant argues that the RPD failed to consider the difficulty that people from Chiapas face in settling elsewhere in Mexico because of the stigma caused by the conflict.11 [23] The RAD disagrees. [24] Section 1.2 of Tab 13.1 in the NDP on Mexico, cited in the appellant's memorandum, refers to displacements within the state of Chiapas. This does not contradict the RPD's decision to suggest IFAs in areas outside of that state because the EZLN group's activities are based in the state of Chiapas. [25] With respect to the argument that people from Chiapas have difficulty settling elsewhere in Mexico because of the stigma caused by the conflict, the appellant made no specific, detailed submission on the type or nature of those difficulties. People from the state of Chiapas are Mexican citizens, and there are no laws or regulations in Mexico that would prevent them from settling elsewhere in the country. [26] Moreover, at the hearing, neither the appellant nor his counsel identified any specific issues that are unique to people from the state of Chiapas in being able to settle outside of their state of origin. [27] When asked to explain if he had reasons, other than his fear of the EZLN, why he could not settle in the proposed IFAs, the appellant mentioned only the insecurity in the country. [28] The RAD is of the opinion that the appellant's arguments are unfounded and that the RPD did not err in its conclusions. C) The internal flight alternative in Merida and Tlaxcala [29] Although the appellant did not challenge the RPD's conclusions on the two prongs of the IFA, besides two sentences without any explanation or specific and detailed submission: - The RPD erred in the test for an IFA in Merida or Tlaxcala;12 and - Merida is too close to Chiapas, and Tlaxcala would be unreasonable given the situation in that state;13 [30] The RAD conducted its own analysis: [31] In Rasaratnam14 and Thirunavukkarasu,15 the Federal Court of Appeal defined the test for assessing an IFA. It is two-pronged: 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.16 2. 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 him to seek refuge there.17 [32] Both prongs must be satisfied for a finding that an IFA exists. The onus is on the appellant to establish that he would be at risk and/or that it would be unreasonable for the appellant to seek refuge in the IFA location. The first prong [33] The RPD concluded that the appellant has failed to demonstrate, on a balance of probabilities, that his agents of harm would be able to find him in Merida or Tlaxcala, which are the proposed IFAs. [34] The appellant testified that he does not intend to return to Chiapas to reclaim his land. His wife and two children, who stayed in Mexico, still live in Chiapas and have not had any problems with the Zapatistas. [35] The appellant also testified that his 16-year-old son continues to go to the same school without any problem or incident. [36] Finally, the RPD asked the appellant about his safety in the proposed IFAs and how the Zapatistas could find him. His answers were vague, evasive and unpersuasive: [translation] "they track you with photographs" and "only they know how to do it." These answers do not satisfy the RAD, on a balance of probabilities, that the Zapatistas, who are already in possession of the land, have an interest in looking for the appellant in the proposed IFAs. [37] These conclusions are not contested. The RAD concludes that they are correct and that the RPD did not err. The second prong [38] The RPD concluded that it would not be unreasonable for the appellant to seek refuge in the cities of Merida or Tlaxcala. The appellant had failed to demonstrate that he would not be able to go to these IFAs and find work and housing and receive care there. [39] The RAD, like the RPD, is of the opinion that the appellant has failed to establish that the proposed cities would be objectively unreasonable in all the circumstances. [40] With respect to the appellant's only argument to reject the proposed IFAs, that [translation] "Merida is too close to Chiapas, and Tlaxcala would be unreasonable given the situation in that state," the RAD disagrees with the argument made against Merida. The shortest distance between the appellant's city in Chiapas (Comitan de Dominguez) and Merida is 752 km. There is no explanation about the situation in Tlaxcala in the memorandum. [41] The RAD concludes that the appellant has an IFA in Merida or Tlaxcala. [42] The RAD concludes that the RPD's decision is correct. CONCLUSION [43] The RAD dismisses the appeal and confirms the RPD's determination, namely, that the appellant is neither a Convention refugee nor a person in need of protection. (signed) Mokhtar Lamani Mokhtar Lamani March 12, 2021 Date IRB translation Original language: French 1 Appellant's memorandum, the first four points in section (i), digital page 19 of the appellant's record. 2 Ibid. The following points. 3 Ibid., section (iv): Decision sought, digital page 21 of the appellant's record. 4 Appellant's statement, third paragraph, digital page 17 and the appellants' memorandum, section (v). 5 Canada (MCI) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (MCI), 2018 FC 1145. 6 Appellant's memorandum, first, second and third paragraphs of section (i) Refugee Protection Division (RPD) errors. 7 Ibid., fourth paragraph. 8 RPD reasons, para. 16. 9 Appellant's memorandum, last paragraph of digital page 19 of the appellant's record. 10 Ibid., second and third paragraphs of digital page 20 of the appellant's record. 11 Ibid., fourth paragraph. 12 Ibid., sixth paragraph. 13 Ibid., seventh paragraph. 14 Rasaratnam v. Canada (MEI) [1992], 1 F.C. 706 (C.A.). 15 Thirunavukkarasu v. Canada (MEI) [1994], 1 F.C. 589 (C.A.). 16 Supra, endnote 5, p. 710. 17 Supra, endnote 5, pp. 709 and 711. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-02837 RAD.25.02 (January 2020) Disponible en français 3 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