VB9-08817

RAD File / Dossier de la SAR : VB9-08817 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Calgary, AB Appel instruit / entendu à Date of decision March 11, 2020 Date de la décision Panel Derek Vermette Tribunal Counsel for the person who is the subject of the appeal Kevin Rosales Barrister & Solicitor 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 XXXX (the Appellant) is a citizen of Mexico. He is appealing a decision of the Refugee Protection Division (RPD) that determined that he was not a Convention1 refugee or a person in need of protection. [2] XXXX came to Canada seeking protection because he feared extortion and robberies from cartels in Mexico. [3] The RPD concluded that XXXX had an Internal Flight Alternative (IFA) - a safe and reasonable location within Mexico - in Mérida, Mexico, and that having this IFA was determinative of XXXX' claim. XXXX argues on this appeal that the RPD erred by ignoring or misconstruing evidence that establishes that the cartels in question have the resources and motivation to harm XXXX in Mérida, and that Mérida is an unreasonable IFA in so far as it would require XXXX to live in hiding from the cartels. [4] I find that the RPD decision was correct. It is my determination that XXXX has an IFA in Mérida, Mexico, and that this is determinative of XXXX' appeal. I therefore dismiss this appeal. DECISION [5] 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 [6] The following background is a summary of XXXX' narrative to his Basis of Claim form. [7] Near the end of 2014, XXXX received a call from an active member of the cartel "Nueva Generacion de Jalisco". The cartel member indicated that he was calling to provide XXXX and his family with protection in exchange for XXXX paying him money. XXXX hung up. The cartel member called again and threatened XXXX not to make light of the situation or he would be sorry. XXXX once again hung up, and then changed his phone number. [8] XXXX received another call approximately six months after the first one. There was a woman crying on the call, and she said, "Dad, it's XXXX and they are kidnapping me." XXXX knew it was not his daughter, so he told her to have a good trip and once again, hung up. XXXX was disturbed that they knew his daughter's nickname, as only close friends and family call her that name. [9] When XXXX received this call, he was in the city of Colima, Mexico, commuting to his office. He called his daughter to report what had happened. He also called his ex-wife, and her secretary informed XXXX that someone had already called pretending to be his daughter. [10] XXXX continued to receive threatening phone calls despite changing his phone number six times. On at least one occasion, the caller indicated they were with the Sinaloa cartel. XXXX and his ex-wife were business owners. They sold XXXX XXXX and XXXX, and XXXX XXXX. XXXX and his ex-wife were concerned they were being targeted for their XXXX XXXX XXXX XXXX XXXX XXXX [11] On XXXX XXXX, 2016, XXXX' ex-wife, daughter and son-in law were the victims of an armed assault in Colima at the hands of members of the Nueva Generacion de Jalisco cartel. They asked for the XXXX of XXXX' XXXX, and XXXX' family members were forced to their knees at gunpoint. A neighbour later told XXXX' ex-wife that she saw the police circling the area, essentially witnessing the assault but failing to do anything about it. [12] The cartel took XXXX XXXX XXXX pesos during the assault, and threatened to kill the entire family if they reported the assault to the police. The family filed a complaint with the police, and the assailants were captured shortly thereafter while in the middle of committing another crime. [13] XXXX' friend, who works at the XXXX XXXX, informed XXXX that the cartel members who had assaulted his family had been freed because they XXXX the XXXX a XXXX XXXX XXXX XXXX XXXX XXXX. [14] XXXX and his ex-wife received additional calls, and they were told they would be killed if they did not pay without resistance and on a regular basis. XXXX' business continued getting robbed by the cartel. XXXX and his ex-wife determined there was no reason to pay the cartel as they would be robbed anyways. He made complaints to the police, but the police did not help. [15] In XXXX 2017, a note was left for XXXX' ex-wife indicating that time was running out, and that XXXX and his family were going to pay for their lack of cooperation. [16] XXXX asked his ex-wife and daughter to escape with him to Canada, but they were afraid that they would not be approved as refugees and decided to stay behind. XXXX told his ex-wife and daughter that he would come to Canada as a visitor, research the refugee process and make a claim. XXXX arrived in Canada from Mexico in XXXX 2018. [17] While XXXX was in Canada, one of his warehouses was XXXX XXXX XXXX by the cartel. XXXX wants to be granted refugee status, and hopes that he can inspire his ex-wife and daughter to do the same. XXXX believes their lives are in danger as they have been targeted by some of the most dangerous people in Mexico, and there is nowhere to hide. XXXX believes the cartels' reach extends throughout Mexico and they are extremely powerful. ANALYSIS [18] My role is to look at all the evidence and decide if the RPD made the correct decision.2 Before giving the reasons for my decision, I will summarize why the RPD decided that XXXX is neither a Convention refugee nor a person in need of protection. I will also summarize XXXX' arguments as to why he believes the RPD erred in its decision. The RPD decision [19] The RPD Member found that XXXX, as a victim of crime with no nexus to the Convention, was not a Convention refugee pursuant to section 96 of the Immigration and Refugee Protection Act (IRPA).3 The RPD analyzed XXXX' claim under section 97(1) of IRPA, in accordance with the agreement of XXXX' Counsel at the RPD hearing.4 In any event, the RPD found that the determinative issue in this claim was the availability of an IFA in Mérida, Mexico. The RPD determined that XXXX did not face a serious possibility of persecution, nor does he face a section 97(1) risk in Mérida. The RPD indicated that Mérida was based in a state that was considered the most peaceful state in Mexico. The RPD also indicated that the cartels in question did not have a presence in Mérida. The RPD concluded that the suggestion that the state is an agent of harm is speculative, and in fact the police had accepted XXXX' complaint in XXXX 2016 and apprehended the robbers in question. Finally, the RPD found that it was reasonable for XXXX to relocate to Mérida based on him having shown that he is able to continue to operate his business from Canada, he is relatively mobile, he is resourceful, relatively young and well-educated, and that he has no obvious barriers that would prevent him from re-establishing himself in Mérida. XXXX' arguments as to why the RPD erred [20] XXXX' Counsel made submissions regarding the city of Monterrey as an IFA, because it was identified as a potential IFA at the RPD hearing. However, the RPD based its decision on the city of Mérida, and I will therefore focus on the submissions relating to Mérida. XXXX' Counsel submits that the RPD ignored or misconstrued evidence that supported that XXXX faces a risk of serious harm in Mérida, by either the Nueva Generacion de Jalisco cartel or the Sinaloa cartel. The evidence demonstrates that the cartels have both the resources and motivation to locate and harm XXXX in the IFA. Irrespective of the relative peacefulness of the state in which the IFA is located compared to other Mexican states, XXXX is still at particular risk of being tracked and harmed by the cartels in Mérida. Given both the cartels' extensive networks across the country, it is likely they could track XXXX in Mérida. The cartels are motivated to track XXXX because extortion is a key way to finance their activities, and they have shown a desire to punish XXXX for refusing to make the extortion payments. XXXX is at particular risk because he has made complaints to the police, and this information is accessible in databases that are not secure from unauthorized access or breaches. The RPD ignored evidence of the pervasiveness of the corruption among Mexican authorities, including widespread complicity with the cartels. The RPD also misapprehended the unreasonableness of requiring XXXX to live in hiding from the Nueva Generacion de Jalisco cartel and the Sinaloa cartel in Mérida. An IFA is unreasonable if it requires an applicant to live in hiding for an indefinite period of time, and in Mérida, XXXX would be required to do just that. This is consistent with how XXXX' ex-wife and family have to currently live in Colima. They live like prisoners in their homes that are guarded and fortified with gates, and they rarely leave their homes. My decision [21] In my independent assessment of this file, I find that Mérida, Mexico is a viable IFA for XXXX. The RPD made the correct decision. My reasons are as follows. [22] The existence of an IFA is fatal to any refugee claim. If a claimant can find safety from persecution by fleeing within their country, then they are not entitled to Canada's surrogate protection. This is because a claimant must be a refugee from a country, not from a particular region of a country. [23] The test to be applied in determining whether there is an IFA is two-pronged.5 Firstly, there must be no serious possibility of XXXX being persecuted in the part of the country identified as an IFA, or that, on a balance of probabilities, he would not be subjected personally to a danger of torture or a risk to his life or to a risk of cruel and unusual treatment or punishment in the part of the country identified as the IFA. Secondly, the conditions in that part of the country must be such that it would not be unreasonable in all the circumstances, including those particular to XXXX, for him to seek refuge there. The threshold to show that the IFA is unreasonable requires nothing less than the existence of conditions which would jeopardize the life and safety of XXXX and that actual and concrete evidence of such conditions is required.6 [24] Both prongs must be satisfied to find that XXXX has an IFA, and once the issue of IFA has been raised and the potential IFAs have been identified, the burden of proof rests with XXXX to show that he does not have an IFA. XXXX does not disagree with the RPD's statement of the legal test but disputes how it was applied. [25] At the RPD hearing, XXXX was given sufficient notice of IFA as an issue, and had ample opportunity to give evidence and submissions with respect to the IFA of Mérida. At the start of the RPD hearing, the RPD Member identified that IFA was going to be an issue, and specifically identified Mérida and Monterrey as potential IFAs.7 The RPD Member asked XXXX' Counsel to specifically address relocating to Mérida in his closing submissions, and Counsel asked for and received additional time to prepare written submissions.8 [26] With respect to the IFA test, I will first deal with the first prong. I considered XXXX' Counsel's submissions with respect to the alleged capacity and motivation of the cartels to pursue XXXX in Mérida. These submissions include the suggestion that the cartels have shown a resolve to punish XXXX for refusing to make the extortion payments, and that there is corruption among Mexican authorities, including widespread complicity with the cartels. [27] I also considered XXXX' testimony at the RPD hearing. XXXX testified at the RPD hearing that he cannot live anywhere in Mexico because the authorities work with the cartels, and so he cannot escape from the cartels.9 XXXX testified that the cartels have identified him because of his XXXX XXXX XXXX XXXX and XXXX XXXX to XXXX XXXX.10 XXXX further testified that he could not run his business remotely from somewhere in Mexico because the cartels have access to information XXXX XXXX XXXX, so they will find him wherever he is located.11 [28] While I have considered the submissions and testimony, I find that the country documents do not support that the Nueva Generacion de Jalisco cartel and the Sinaloa cartel operate in the Yucatan state, where Mérida is located. Specifically, a document entitled, "Tracking Mexico's Cartels in 2019", dated January 29, 2019, discusses the areas of cartel influence in Mexico.12 The report indicates that the Nueva Generacion de Jalisco cartel and the Sinaloa cartel do not have influence in Mérida. I find this report to be persuasive because it is recent, specific and is written by an organization that has expertise on the subject. The editor's note to the report indicates that the organization has, since 2006, been producing "... an annual cartel report chronicling the dynamics of the organizations that make up the complex mosaic of organized crime in Mexico". I find that this recent objective country documentation that supports that the cartels in question do not have influence in Mérida, is more persuasive than the generalizations as to how the cartels operate in areas where they are active. Given that the cartels in question do not operate in Mérida, I find that there is no serious possibility of XXXX being persecuted in Mérida, and that, on a balance of probabilities, he would not be subjected personally to a danger of torture or a risk to his life or to a risk of cruel and unusual treatment or punishment in Mérida. [29] With respect to the second prong of the IFA test, I have considered XXXX' submission that it is unreasonable for him to relocate to Mérida because he would have to go into hiding. In support of this submission, XXXX' Counsel submitted that XXXX' ex-wife continues to receive threatening calls. The callers indicate that they are looking for XXXX and will harm him for not paying the sum demanded. It was also submitted that XXXX' ex-wife lives like a prisoner in her house, that is fortified and guarded, rarely leaving the house and operating the business from home. XXXX' daughter also lives in a guarded house. [30] I find that XXXX would not be required to go into hiding in Mérida. I base this finding on the fact that, as referenced above, the country documents do not support that the Nueva Generacion de Jalisco cartel and the Sinaloa cartel operate in the Yucatan state, where Mérida is located. Therefore, references to XXXX' family receiving threats and living in hiding in Colima, are not comparable to the situation that XXXX would face in Mérida, where the cartels in question do not have influence. [31] For all of the above reasons, I find that XXXX has not met his burden to show that he does not have an IFA in Mérida. CONCLUSION [32] 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) "Derek Vermette" Derek Vermette March 11, 2020 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 3 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 4 Exhibit P-2, Appellant's Record, RPD Hearing Transcript, p. 5, line 6 to 20. 5 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (FCA). 6 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 at para. 15 (C.A.). 7 Exhibit P-2. Appellant's Record, RPD Hearing Transcript, p. 6, line 9 to 18. 8 Exhibit P-2, Appellant's Record, RPD Hearing Transcript, p. 38, line 21 to p. 40, line 11. 9 Exhibit P-2, Appellant's Record, RPD Hearing Transcript, p. 26, line 36 to p. 27, line 3. 10 Exhibit P-2, Appellant's Record, RPD Hearing Transcript, p. 29, line 18 to 26. 11 Exhibit P-2, Appellant's Record, RPD Hearing Transcript, p. 31, line 3 to 7. 12 National Documentation Package for Mexico (30 August 2019), Item 7.21: Tracking Mexico's Cartels in 2019. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-08817 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