MB9-12573

RAD File No. / No de dossier de la SAR : MB9-12573 MB9-12574 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 XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision September 2, 2020 Date de la décision Panel Me Isabelle Parizeau Tribunal Counsel for the persons who are the subject of the appeal Me Myriam Roy-L'Écuyer Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] XXXX XXXX XXXX XXXX XXXX (the appellant), a citizen of Mexico, and her son, XXXX XXXX XXXX XXXX (the minor appellant), a citizen of Mexico and the United States, are appealing the decision of the Refugee Protection Division (RPD) rejecting their refugee protection claim. [2] The appellant fears being killed by a Los Zetas cartel commander whom she refused to help escape from military members who were pursuing him. [3] The RPD found the evidence insufficient to conclude that there was an agent of harm and that the appellant's behaviour was inconsistent with the alleged fear. It was of the view that the appellant did not make sufficient efforts to obtain state protection and that she has an internal flight alternative (IFA) in Mexico City or in the state of Nayarit. It concluded that there was no fear for the minor appellant in the United States. [4] The appellant submits that the RPD relied on speculations and hypotheses in order to reach an unreasonable conclusion about the existence of her agent of persecution and her behaviour. It ignored a large part of the documentary evidence filed by the appellant in support of the alleged incidents. The IFA proposed by the RPD is illusory, and the documentary evidence establishes that the RPD's conclusion regarding state protection is unreasonable. [5] The Refugee Appeal Division (RAD) is of the view that the determinative issue is the IFA in Mexico City or the state of Nayarit. [6] The RAD confirms the RPD's determination and dismisses the appeal. BACKGROUND [7] On XXXX XXXX XXXX 2017, a shooting allegedly occurred at a mall where the appellant was shopping. She states that she decided to leave the area and go to the parking lot to get her car. When she was paying at the booth, a man who had allegedly followed her pointed a weapon at her and demanded that she get in his vehicle, shouting that military members were after him. She states that she refused and managed to leave the parking lot. [8] On XXXX XXXX, 2017, the appellant allegedly received a death threat by telephone because she had not helped the Z commander. She states that she filed a police complaint the XXXX XXXX XXXX On XXXX XXXX XXXX 2017, when she was at a friend's house in Monterrey, she reportedly received another threatening call. She states that she went to live with her aunt in the city where she lived and that her son went back to school and she went back to work. [9] On XXXX XXXX XXXX 2017, the appellants came to Canada to visit the appellant's family. On XXXX XXXX, 2017, one of the appellant's sisters allegedly received a threatening call from someone who was looking for the appellant, and on XXXX XXXX XXXX 2017, one of her employees was reportedly abducted by criminals looking for the appellant. [10] The appellants did not return to Mexico. On January 24, 2018, the appellant claimed refugee protection in Canada. ANALYSIS [11] The RAD conducted an independent analysis of all of the evidence, which included listening to the recording of the RPD hearing, and it applied the correctness standard.1 [12] The RAD will not assess the appellant's arguments regarding her credibility or state protection, as it is of the opinion that the determinative issue is the IFA in Mexico City or the state of Nayarit.2 In this case, as explained below, the RAD doubts the appellant's credibility with regard to the calls her sister allegedly received on XXXX XXXX and XXXX, 2017, and the abduction of her employee. Internal flight alternative [13] In Rasaratnam3 and Thirunavukkarasu,4 the Federal Court of Appeal defined the test to apply to assess 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 or, on a balance of probabilities, of them being personally subjected to a risk of harm in the part of the country in which it finds an IFA exists.5 2. 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 claimant, for them to seek refuge there.6 [14] Both prongs must be satisfied to conclude that there is an IFA. [15] The RAD notes that the appellant is only contesting the RPD's conclusion that there is an IFA in Mexico City.7 She does not specifically refer to the RPD's conclusion that there is a potential IFA in the state of Nayarit. The RAD does not see any error in the RPD's uncontested conclusion that there is an IFA in the state of Nayarit. [16] With regard to the first prong, despite the appellant's lack of arguments regarding the IFA in the state of Nayarit in her memorandum, beyond, perhaps, a statement at paragraph 548 that there is no IFA in Mexico [translation] "...when one is so intensely targeted by the cartels," the RAD examined both IFAs proposed by the RPD. [17] The onus is on the appellant to establish a serious possibility of persecution or, on a balance of probabilities, that she would be personally subjected to a risk of harm in the proposed IFAs. The RAD is of the opinion that the appellant failed to do this. [18] The appellant argues in her memorandum that Mexico City as an IFA is illusory and contradicted by the documentary evidence. She states that personal information registries have been sold to cartels; they are thus able to track down their targets. The documentary evidence9 also explains that the Los Zetas cartel is present throughout the country and confirms that the cartel is known for killing people who refuse to pay and for its desire to expand. This evidence contains a map of the zones controlled by each cartel, and according to the appellant, the option suggested by the RPD is not far from the zone controlled by the Los Zetas cartel, and she and her son could be easily found. [19] The RPD identified Mexico City and the state of Nayarit as zones that are not controlled by the Los Zetas cartel after consulting the same documentary evidence as that cited by the appellant.10 The RPD noted the appellant's testimony that she would not be able to move to the proposed IFAs because, in Mexico, organized crime is more organized than the government. The agent of harm would be able to find her in Mexico City because she did not help him and he was going to make her pay; she would have to provide her identity to obtain housing or a telephone. The RPD concluded that the evidence did not establish that the Z commander was interested in or motivated to find the appellant in the proposed IFAs. It added that it drew such a conclusion because it found that the appellant lacked credibility with regard to the Z commander's profile. [20] According to the map of Mexico,11 the state of Nayarit is located along the Pacific coast, south of Mazatlan. It is on the opposite side of the country from Reynosa, the city where the appellant lived. That city is close to the United States border, on the Gulf of Mexico side, in the state of Tamaulipas. [21] The RAD reviewed the 2017 map of the zones controlled by each cartel, as it appears in the documentary evidence cited by the appellant and the RPD.12 The state of Nayarit is not a zone controlled by the Los Zetas cartel. In 2017, this cartel had a small region of influence further south of the state of Nayarit in Guadalajara. With regard to Mexico City, contrary to the appellant's statement, and still according to the 2017 cartel map of regions of influence, the Los Zetas cartel was not established there. [22] The RAD also examined the updated documentary evidence. According to the 2018 regions of influence map,13 the Los Zetas cartel appeared to have expanded its region of influence to Mexico City, without, however, reaching the state of Nayarit. [23] According to the documentary evidence cited by the appellant and the RPD, and in the update, the Los Zetas cartel was fragmented following federal government efforts against cartels in April 2015, which led to it losing around 30 of its leaders. It notes that the organization is no longer as powerful as it was in 2011 and 2012. [24] The appellant provided an article on the same subject entitled, "Mexico's Zetas: From Criminal Powerhouse to Fragmented Renmants" published on April 6, 2018.14 It states that: The Zetas were once Mexico's most feared and violence organized crime threat. Now, the group is a fragmented shadow of its former self...15 The fragmentation of the Zetas has been enormous. ... Now we're talking about groups that are dedicated to one criminal activity, and not a criminal corporation that was controlling different criminal businesses with different cells throughout Mexico.16 [25] The updated documentary evidence17 confirms that the cartel has broken down into smaller local factions that each have their own priorities, activities and alliances and generate profits through criminal activities in the areas where they operate. Los Zetas cartel factions are active in the states of Tamaulipas, Nueva Leon and Coahuila. According to the map of Mexico, these are the states in the north and on the Gulf of Mexico side. According to some sources, the cartel has infiltrated police services in various places in central Mexico and on the Gulf side. One source states that cartels use family networks and private investigators to track people, as well as property records in the United States and Mexico and GPS trackers on cars. A personal vendetta could motivate a gang to track someone outside their area and use corrupt law enforcement agents. [26] Considering the documentary evidence, the RAD concludes that the appellant's assailant could have the means to find her in Mexico City, which is currently one of the cartel's regions of influence. However, given that the cartel has broken down into local factions that make profits from their activities in their own regions, it appears less likely that the assailant would be able to find her in the state of Nayarit, where the cartel is not established. [27] That said, the RAD is of the opinion that the appellant failed to establish the assailant's interest in or motivation to find her. [28] When the RPD asked why he would want to find her, the appellant answered that it was about power, he did not accept that she had said no, she was in the wrong place at the wrong time, he wanted to destroy her, it was a personal vendetta.18 [29] The appellant has not had any contact from the Z commander or the people who work for him since XXXX XXXX XXXX 2017. The appellant testified19 that since the call received on XXXX XXXX XXXX 2017, when she was in Monterrey, no one else has tried to contact her. She has left her cellphone off since that date. She has not heard from those people since then. The appellant allegedly stayed in Monterrey with a friend from XXXX XXXX, 2017, to XXXX XXXX XXXX 2017. She reportedly returned to Reynosa and moved in with her aunt in a different neighbourhood than hers. Up until they left for Canada on XXXX XXXX XXXX 2017, the appellants state that they carried on with their lives without incident. According to the appellant's account,20 her uncle or her brother would drive her to work and her uncle took her son to school. The appellant did not report taking any other specific measures to protect herself. [30] In her written account21 and at the hearing,22 the appellant stated that on XXXX XXXX XXXX2017, when she was in Canada, she allegedly received a call from her sister, who told her that a man had called her and was looking for her. He allegedly insulted her. Her sister reportedly called her again on XXXX XXXX, 2017, to tell her that a man had called her and informed her that her employee had been kidnapped. He wanted to know how far he had to go for her to give him information about the appellant. In her written account, the appellant explained that her sister kept on receiving threatening calls and decided to close her store. [31] The appellant criticizes the RPD at paragraph 55 of her memorandum23 for having ignored all of the evidence she filed. She argues that much of the evidence confirms her numerous moves and the calls that her sister, XXXX XXXX XXXX, received. The RAD analyzed this evidence. Its analysis led it to doubt the appellant's credibility with regard to the alleged events of XXXX XXXX and XXXX, 2017. [32] The appellant filed a letter dated XXXX XXXX, 2018,24 signed by her sister, XXXX XXXX XXXX XXXX XXXX. Her sister states that she has owned a XXXX XXXX since XXXX 2017 and that she has one employee. In the letter, she explains the calls of XXXX XXXX and XXXX, 2017, and the abduction of her employee in detail. She states: [translation] "I still receive threatening calls from these men, they tell me that they know where I live and they know my children's names ... they kept on calling me, but I was so afraid that I couldn't answer. Once, I answered and the men warned me to not contact the police because I would regret it. They wanted me to believe that I was going to pay for helping XXXX, who had dared to not help the boss." The appellant's sister ends her letter stating that she changed her cellphone number and closed her store. [33] The appellant filed another letter from her sister, XXXX XXXX XXXX XXXX XXXX, this time dated XXXX XXXX XXXX 2019.25 In it, her sister states that she changed her cellphone number after the events in XXXX 2017 to stop receiving threatening calls. She explains that at the time, she had a job at Sanmina, in the city of Reynosa, and that she had 10 years of experience there. After everything that had happened, her employer allegedly gave her permission to telework and she remained in hiding with her children. This reportedly lasted for XXXX XXXX. When she had to go back to work, she was not at ease; she allegedly quit, she felt watched and she allegedly moved to another city. [34] The RAD draws a negative inference from the different stories from the appellant's sister. It does not believe that the appellant's sister's employee was abducted by people working for the Z commander because she did not help him escape from military members on XXXX XXXX XXXX 2017. [35] The RAD concludes that the evidence shows that the appellant has not heard from the Z commander or the people working for him since XXXX XXXX XXXX 2017, and that the evidence did not credibly establish that he was motivated to or interested in finding her more than two years later. [36] The RAD is of the opinion, with regard to the first prong of the IFA test, that the evidence filed does not establish that there is a serious possibility of persecution for the appellant, or a likelihood that she would be subjected to a risk to her life or to a risk of cruel and unusual treatment or punishment, or torture if she settled in Mexico City or the state of Nayarit in Mexico. [37] As for the second prong, the appellant did not state in her memorandum why it would be unreasonable for her to seek refuge in Mexico City. As previously mentioned, the appellant's memorandum does not address the possible IFA in the state of Nayarit. [38] The RAD agrees with the RPD that the evidence does not establish that it would be unreasonable for the appellant to seek refuge in Mexico City or in the state of Nayarit. [39] As stated by the RPD and noted by the RAD upon listening to the recording of the RPD hearing, the appellant testified26 that she would be able to find work and housing in Mexico City or in the state of Nayarit. The RPD also noted that the appellant is well-educated, has taken English lessons (which is an additional asset), and describes herself as a hard-working person who managed to raise her son on her own. [40] The RAD is of the opinion that the RPD's conclusion that there is an IFA in Mexico City or in the state of Nayarit is correct. Minor American appellant [41] The RAD did not note any errors in the RPD's uncontested conclusion that there was no evidence establishing that the minor appellant would face a serious possibility of persecution or would be personally subjected to a risk in the United States. [42] The RAD concludes that the RPD's decision is correct. CONCLUSION [43] The RAD dismisses the appeal and confirms the determination of the RPD that the appellants are not Convention refugees or persons in need of protection. (signed) Isabelle Parizeau Me Isabelle Parizeau September 2, 2020 Date IRB translation Original language: French 1 Canada v. Huruglica, 2016 FCA 93. 2 Kazeem v. Canada (Citizenship and Immigration), 2020 FC 185. 3 Rasaratnam v. Canada (Minister of Employment and Immigration) [1992] 1 F.C. 706 (C.A.). 4 Thirunavukkarasu v. Canada (Minister of Employment and Immigration) [1994] 1 F.C. 589 (C.A.). 5 Supra, endnote 3, p. 710. 6 Supra, endnote 3, pp. 709 and 711. 7 P-2, Appellant's record, appellant's memorandum, p. 19, paras. 57 and 58. 8 P-2, Appellant's record, appellant's memorandum, p. 18. 9 SPR-1, National Documentation Package (NDP) on Mexico (March 29, 2019), Tab 7.2: Mexico: Organized Crime and Drug Trafficking Organizations, Congressional Research Service, June S. Beittel, July 3, 2018. 10 Supra, endnote 9. 11 SPR-1, NDP on Mexico (March 29, 2019), Tab 1.1: Mexico, United States. Central Intelligence Agency, 1997. The same map is in the NDP of March 31, 2020. 12 Supra, endnote 9, p. 26. 13 SPR-1, NDP on Mexico (March 31, 2020), Tab 7.2: Organized Crime and Drug Trafficking Organizations, Congressional Research Service, June S. Beittel, December 20, 2019, p. 29. 14 SPR-1, Refugee Protection Division (RPD) record, Exhibit P-15, pp. 160 to 163. 15 Ibid, p. 160. 16 Ibid, p. 163. 17 SPR-1, NDP on Mexico (March 31, 2020), Tab 7.15: Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltrán Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017-August 2019), IRB, August 15, 2019, MEX106302.EF. pp. 2, 3, 6, 7, 11 and 12. 18 Audio recording of the RPD hearing on April 29, 2019, at around 1:35:13 minutes and 1:39:49 minutes. 19 Ibid., at around 1:49:35 minutes and 1:51:17 minutes. 20 SPR-1, RPD record, appellant's account, p 27. 21 Ibid, pp. 27 and 28. 22 Audio recording of the RPD hearing on April 29, 2019, at around 1:29:30 minutes and 1:35:00 minutes. 23 P-2, Appellant's record, appellant's memorandum, p. 18. 24 SPR-1, RPD record, pp. 100 to 102. 25 Ibid, p. 103. 26 Audio recording of the RPD hearing on April 29, 2019, at around 1:48:45 minutes and 1:49:00 minutes. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB9-12573 MB9-12574 RAD.25.02 (January 2020) Disponible en français 9 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