MC0-05389

RAD File / Dossier de la SAR : MC0-05389 MC0-05390 / MC0-05391 f 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 Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision January 26, 2021 Date de la décision Panel Anne Revil Tribunal Counsel for the persons who are the subject of the appeal Oscar Fernando Rodas Conseil des personnes 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 XXXX, the principal appellant, XXXX XXXX XXXX XXXX XXXX, her brother, and XXXX XXXX XXXX XXXX XXXX XXXX, his wife, are citizens of Mexico. [2] They claimed refugee protection in Canada, which was rejected by the Refugee Protection Division (RPD) on the grounds that they had an internal flight alternative (IFA) in Hermosillo and Mazatlan. [3] They are appealing the decision before the Refugee Appeal Division (RAD) pointing out that the RPD committed the following errors: * Regarding the principal appellant, the RPD contradicted itself by concluding in a contradictory manner that the events alleged are credible, that she was the victim of violence for fear of her former spouse and then concluded that she benefited from an IFA; the RPD was wrong to conclude that it was not established that her former spouse was a gang member when he was the one who informed her thereof and that based on his profile, he would have neither the capacity nor the means to find her in the IFAs proposed. * Regarding the associate appellants, the RPD acknowledged the truthfulness of the instances of extortion and death threats and, therefore, could not conclude that there is an IFA without committing an error in law. [4] The determinative issue for the three appellants is therefore that of IFA in Hermosillo and Mazatlan. DETERMINATION [5] The appeal is dismissed. The RPD rightly determined that the appellants are not Convention refugees or persons in need of protection for the following reasons. BACKGROUND [6] XXXX XXXX XXXX XXXX indicates in the Basis of Claim Form that she lived in XXXX XXXX XXXX XXXX State of Tabasco, Mexico. She stated that she feared her former spouse, who became very violent in the course of their relationship, between 2004 and 2013. She left her spouse in XXXX 2013 with their two children and went live at her parents' house. Her former spouse nevertheless continued to threaten to kill her, to follow her in the street and to go to the house. She then decided to leave Mexico and arrived in Canada on XXXX XXXX XXXX 2018. [7] XXXX XXXX XXXX XXXX was a XXXX in Mexico and lived in the city of XXXX XXXX XXXX, State of Tabasco. He stated that he feared a gang of criminals who threatened to kidnap and kill him if he did not pay the money demanded or if he did not participate in their extortion. He left with his wife to seek refuge at an aunt's home in XXXX. Fearing for his life, he then left the country for Canada, where he arrived on XXXX XXXX XXXX 2018. [8] His wife joined him on XXXX XXXX XXXX 2018, and bases her claim on her husband's allegations. ANALYSIS [9] The role of the RAD is to determine whether, as the appellants allege, the RPD committed errors in its analysis. [10] To this end, the RAD listened to the recording of the hearing before the RPD, conducted its own analysis of the record and all the evidence and applied the correctness standard. It took into account Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution in XXXX XXXX XXXX XXXX appeal. [11] The RAD points out that the protection offered by refugee status must be a last resort, when people requesting it cannot find refuge elsewhere in their country. [12] According to the case law, "[t]o determine if a viable IFA exists, the RAD must be satisfied, on a balance of probabilities, that (1) the claimant will not be subject to persecution (on a "serious possibility" standard), or a section 97 danger or risk (on a "more likely than not" standard) in the proposed IFA; and (2) in all the circumstances, including circumstances particular to the claimant, conditions in the IFA are such that it would not be unreasonable for the claimant to seek refuge there. [13] Both of the "prongs" of the test must be satisfied to conclude that a refugee protection claimant has a viable IFA. The threshold on the second prong of the IFA test is a high one. There must be "actual and concrete evidence" of conditions that would jeopardize the claimants' life and safety in travelling or temporarily relocating to a safe area. "Once the potential for an IFA is raised, the claimant bears the onus of establishing it is not viable."1 I-The appeal of XXXX XXXX XXXX XXXX The RPD did not err in finding that XXXX XXXX XXXX XXXX had an IFA in Hermosillo and Mazatlan, for the following reasons. The first prong of the internal flight alternative The membership of XXXX XXXX XXXX XXXX former spouse in a gang [14] XXXX XXXX XXXX XXXX is contesting the RPD's conclusion regarding her former husband's membership in a gang. [15] XXXX XXXX XXXX XXXX stated that her former husband was a member of a gang. She explained that he had told her this a number of times. However, she was unable to provide any evidence to substantiate this statement. She mentions that she does not know the name of this gang, its influence, its role or the type of crime it commits. [16] The RAD finds that, even assuming that her former husband told her that he was a member of a gang, this mere statement is not enough, on a balance of probabilities, to establish that this is the truth, insofar as this statement made by her husband is not substantiated with any other evidence. [17] Therefore, the RPD did not err in finding that it was not established that XXXX XXXX XXXX XXXX former spouse was a member in a gang. The possibility that her former spouse could find her in the internal flight alternative proposed [18] XXXX XXXX XXXX XXXX is contesting the RPD's conclusion that her former husband could not find her in the IFAs proposed, by stating that he is a member in a gang. [19] The preceding paragraphs show that it was not established that this individual is a gang member, and consequently, he would not have a gang's means to find her. [20] Furthermore, even if the RAD had believed the membership, in the absence of evidence on this gang, it also could not have been established that he would be able to find her in the proposed IFAs. [21] XXXX XXXX XXXX XXXX did not provide any evidence on the possibility that her former husband could find her in the IFAs concerned or evidence related to the fact that she would be subjected to a serious possibility of persecution or to a risk under section 97 of the Immigration and Refugee Protection Act (IRPA) in the IFAs proposed. [22] As a result, the RPD rightly concluded that she did not establish that she would be subjected to a serious possibility of persecution or to a risk under section 97 of the IRPA in the IFAs concerned. The second prong of the internal flight alternative [23] The appellant bears the onus of establishing how it would be unreasonable to expect her to relocate to the proposed IFAs. [24] XXXX XXXX XXXX XXXX does not explain how it would be unreasonable to expect her to go live in the IFAs proposed, except for the fact that her former husband could find her there. [25] However, the preceding paragraphs show that it was not established that her former spouse could find her in those two cities. [26] Consequently, the RPD did not err in finding that it was not unreasonable to expect XXXX XXXX XXXX XXXX to go live in the proposed IFAs. The contradiction between the Refugee Protection Division's conclusions [27] The RPD found the allegations credible that her former spouse threatened her life and harm and decided that XXXX XXXX XXXX XXXX would not be subjected to a serious possibility of persecution or to a danger or risk under section 97 of the IRPA if she went to live in the above-mentioned IFAs or that it would not be unreasonable for her to seek refuge there. [28] Contrary to what XXXX XXXX XXXX XXXX states, it is not contradictory to find her allegations credible with respect to a risk in her region of origin and then to conclude that she would not be at risk in another area because the agent of persecution would not find her there, and that it would be unreasonable for her, given her personal profile, to relocate there. II-XXXX XXXX XXXX and XXXX XXXX XXXX claim First prong of the internal flight alternative [29] In their memorandum, the appellants argue that the RPD erred in acknowledging the credibility of their allegations of threats and extortion and then concluded that there is an IFA. [30] As previously set out, it is legally sound to recognize that the allegations of fear in a specific location are credible and to find that the appellant can seek refuge in other cities where they would not be subjected to this extortion or these threats. [31] The appellants also argue that the RPD erred in taking into consideration the appellants' profile because the cartel does not differentiate based on the economic status of their victims. [32] The RAD does not know which RPD conclusion the appellants are referring to in this last argument (the paragraph cited in the memorandum is wrong because it refers to the conclusions regarding XXXX XXXX XXXX XXXX). [33] In addition, the RAD notes that the RPD found that in the absence of any information on the gang which XXXX XXXX XXXX XXXX assailants were reportedly members of, or any other information on the means that they had, it was not established that they would have the means to find them in the proposed IFAs. The RPD also pointed out that the assailants had made no attempt to locate or threaten XXXX XXXX XXXX XXXX family, which continued to live on the farm where the assault took place and concluded from it that the assailants would not be interested in looking for XXXX XXXX XXXX XXXX and his family in the IFAs proposed many hundreds of kilometres away. [34] After conducting an independent analysis, the RAD is of the opinion that the RPD did not err in finding and concluding that it was not established that XXXX XXXX XXXX XXXX or XXXX XXXX XXXX would be subjected to a serious possibility of persecution or subjected to a risk under section 97 of the IRPA. The second prong of their internal flight alternative [35] The RAD notes that the appellants are not contesting the RPD's conclusion that it would not be unreasonable for them to go and relocate in the IFAs with respect to their personal circumstances and does not see any error that the RPD allegedly committed in ruling as such. CONCLUSION [36] The RAD dismisses the appeal and confirms the determination that XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX XXXX XXXX are not Convention refugees or persons in need of protection. (Signed) Anne Revil Anne Revil January 26, 2021 Date IRB translation Original language: French 1 Olusola v. Canada (Citizenship and Immigration), 2020 FC 799 paras. 8 and 9. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : MC0-05389 MC0-05390 / MC0-05391 RAD.25.02 (January 2020) Disponible en français 4 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