VB9-05329

RAD File / Dossier de la SAR : VB9-05329 VB9-05330 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Calgary, AB Appel instruit / entendu à Date of decision August 5, 2020 Date de la décision Panel Derek Vermette Tribunal Counsel for the persons who are the subject of the appeal N/A Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX XXXX XXXXXXXX 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 XXXX XXXX is a citizen of Mexico. Her daughter, XXXX XXXX XXXX XXXX XXXX XXXX XXXXis a citizen of the United States of America (USA), and not a citizen of Mexico. XXXX XXXX XXXX will be referred to collectively as the Appellants. They are appealing a decision of the Refugee Protection Division (RPD) that rejected their claims for refugee protection. [2] By way of background, XXXXwent to a rehabilitation facility in Mexico, and she was told she had to share a room with a man named XXXX XXXX XXXXsoon learned that the facility was run by a cartel, and thatXXXX XXXXwas affiliated with that cartel. After a few months, XXXXremoved her from the facility, and he kept her in his apartment where he physically, sexually and psychologically abused her. XXXXescaped, and she fears that XXXXand his cartel will find and kill the Appellants if they return to Mexico. [3] At the RPD hearing, it was discussed that XXXX was not making any allegations against the USA, her country of nationality.1 As such, the RPD noted in its decision that that there was no evidence that XXXX faces a risk of persecution or of cruel and unusual treatment or punishment, or of torture, in the USA, and determined that XXXX claim for refugee protection must therefore be rejected. The RPD determined that XXXX claim must also be rejected because she has an internal flight alternative (IFA) - a safe location where it is reasonable for her to relocate to - in Merida, Mexico. [4] The Appellants do not argue on this appeal that the RPD had erred with respect to its analysis of XXXX claim. With respect to XXXX claim, XXXX submits that the RPD erred because it is neither safe nor reasonable for her to relocate to Merida, Mexico. [5] As there has been no basis for appeal against the RPD decision in XXXX claim, I will restrict my decision to XXXX claim. It is my determination that the RPD was correct in its decision that XXXX has an IFA in Merida, Mexico. I therefore dismiss the appeals. DECISION [6] I dismiss the appeals. The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection. NEW EVIDENCE The evidence presented by the Appellants is rejected [7] The Immigration and Refugee Protection Act (IRPA)2 anticipates that an appeal to the Refugee Appeal Division (RAD) will ordinarily be based on the record of the RPD proceeding. According to the law,3 I can only accept new evidence from the Appellants on this appeal if it: a. arose after the RPD decision; or b. was not reasonably available at the time of the decision; or c. that they could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [8] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible and relevant before I can accept it.4 [9] The Appellants have submitted a news article from El Universal Newspaper, entitled, "Journalists killed so far in 2019", dated June 13, 2019. They request that I accept this article as new evidence on this appeal: [10] The Appellants submit that the news article shows that there are many reporters who are killed for revealing the truth regarding corruption and the cartels, and that there have been nine reporters killed since 2019. [11] It is my decision that the news article in question should not be admitted as new evidence, for the following reasons. The RPD hearing was held on June 20, 2019. The RPD decision was issued June 28, 2019. The news article of June 13, 2019, pre-dates both the RPD hearing and decision. The Appellants have provided reasons as to why the article is relevant. However, they have not provided any reasons to explain why this article was not reasonably available at the time of the RPD decision; or why they could not reasonably have been expected in the circumstances to bring it to the RPD before the decision. I therefore find that the Appellants have not met the requirements of section 110(4) of the IRPA. [12] The Appellants did not request an oral hearing. I would not have held an oral hearing for the following reason. As I am not admitting the Appellants' document as new evidence pursuant to section 110(4) of the IRPA, it therefore follows that I am unable to grant an oral hearing pursuant to section 110(6) of the IRPA. ANALYSIS [13] My role is to look at all the evidence and decide if the RPD made the correct decision.5 After conducting an independent assessment, I find that the RPD arrived at the correct decision, for the following reasons. [14] 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. [15] The test to be applied in determining whether there is an IFA is two-pronged.6 Firstly, I must be satisfied on a balance of probabilities that: (1) there is no serious possibility of persecution in the part of the country to which it finds an IFA exists, and (2) there is no risk to life or risk of cruel and unusual treatment or punishment or torture. 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 her 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 actual and concrete evidence of such conditions is required.7 [16] Once the issue of IFA has been raised and the potential IFA has been identified, the burden of proof rests with XXXX to show that she does not have an IFA. At the start of the hearing, the RPD gave notice that one of the issues to be discussed included an IFA in Merida, Mexico.8 [17] XXXX argues on this appeal that the RPD erred in its decision with respect to XXXX and the availability of an IFA in Merida because the cartel in question is still powerful; XXXX has the means and motivation to find XXXX in Mexico; and Merida is not generally safe. XXXX also argues that XXXX is not a reasonable IFA in light of the fact that she would be forced to take a lower-paying job; would not have access to psychiatric help; and would have to live in hiding due to her fear. [18] Much of the RPD hearing was spent attempting to clarify dates of the various events leading up to the Appellants' refugee claims. The RPD noted that XXXX struggled with the dates, and that errors in the dates might still remain. However, the RPD found that the errors in the specific dates, explained by the amount of time that has lapsed and the traumatic events XXXX endured, did not negatively impact XXXX general credibility. I also am not concerned about discrepancies in the specific dates. This is because there is one specific event - the fourteen-month period XXXX and her daughter spent in Jalisco - that is crucial to my decision, which I will explain further below. Before discussing that specific event, however, I will describe the approximate timeline of some of the events in general as background information. [19] XXXX testified that she was born in Michoacan, Mexico, and then lived in the USA from the age of seven to eighteen. [20] XXXX indicated that in XXXX2013 (she would have been 22 years old at that point), she was admitted to a rehabilitation facilityXXXX XXXX XXXX XXXX XXXX XXXXMexico. A man named XXXX picked her up to take her to the facility. As she soon learned, the facility was run by a cartel, andXXXX XXXXwas affiliated with the cartel. Despite being the only female at the facility, she was told she would be sharing a room with XXXX. [21] XXXXindicated that in XXXX2014, XXXXremoved XXXX from the facility and confined her to his apartment against her will. He abused her while she was there. [22] XXXX testified that in XXXX2014, she escaped from XXXXapartment, and she fled to Morelia, Mexico, before fleeing to the USA. [23] XXXXlived in the USA, when in XXXX2014, XXXXstarted sending nasty text messages toXXXX XXXXmother. [24] There is an order from an Immigration Judge in the USA, withdrawing XXXXapplication for asylum and ordering her removal from the United States to Mexico. This order is dated XXXX XXXX, 2014. [25] XXXX returned to Mexico, and relocated in Jalisco. In XXXX Generic Application form for Canada, she indicates that she lived in Jalisco, Mexico from XXXX2016 to XXXX2018 (when she then left for Canada). [26] XXXX testified that she stayed in Jalisco for 14 months before coming to Canada. She went to Jalisco because her ex-mother-in-law and ex-brother-in-law lived there (her daughter's father lives in the USA). She did not have family or anyone else to stay with in Mexico.9 While in JaliscoXXXX XXXXlived with her ex-mother-in-law for approximately one month, and then she moved to another part of Jalisco.10 She lived in this other part of Jalisco with just her daughter. [27] As referred to above, the crucial event is the fourteen months that XXXXspent in Jalisco. This is an important period of time because during that time in JaliscoXXXX XXXXand her daughter were not found byXXXX XXXXor the cartel. They were not found by XXXXor the cartel despite the fact that XXXX carried on with a normal life. She worked at aXXXX XXXX XXXXin a XXXX XXXXfrom 9:00am to 4:00pm for six days per week. XXXXalso worked as aXXXX XXXX XXXX XXXX XXXXHer daughter attended daycare. XXXX testified that she took care of everything, such as buying groceries. Apart from the first month, XXXXand her daughter lived alone, so there was no one there to protect them. Despite all of this, XXXXand his cartel did not find them or harm them. [28] XXXX suggested she was in hiding during this time because she was too afraid to take her daughter to the playground or to go out to a restaurant. However, I find that their described way of life does not constitute living in hiding. Attending significant periods of time at work at a XXXXin aXXXX XXXX XXXX XXXXhaving her daughter in daycare, and going out for groceries, does not constitute hiding as both XXXXand her daughter would have been visible and would have been able to be located in these public places if the agents of persecution had been motivated to locate them. [29] XXXX testified at the RPD hearing that she fears XXXXand the cartel he belongs to called XXXX XXXX XXXX XXXX.11 She testified that she fears XXXX because he told XXXXmom and he told XXXX herself before she escaped that he was not going to leave her alone until she was dead. XXXX testified that XXXX made it clear to her mom that if he ever found XXXX XXXX he would kill her and they would never find where she would be buried.12 XXXX also testified that she was concerned that XXXXcartel had connections with another cartel. However, despite these allegations, again, XXXXand her daughter spent fourteen months in Jalisco without being found or harmed. [30] I recognize that Jalisco is a different location than the proposed IFA of Merida. However, the fourteen months they spent safely in Jalisco nonetheless establishes that XXXX XXXXhis cartel and those cartels that might cooperate with them, are not able or motivated to find XXXXand her daughter anywhere in Mexico. [31] There is a lack of evidence with respect to whether XXXX is even looking for XXXX. XXXX indicated at the RPD hearing that her last contact with XXXX was in XXXX 2014 or 2015. XXXX indicated that her mother receives calls where the caller hangs up or says nothing. However, this is insufficient evidence to establish that it is XXXX that is on the other end.13 [32] I acknowledge that XXXX expressed concern at the RPD hearing with respect to the presence of cartels in Merida. However, the presence of cartels in general does not necessarily mean that XXXXand her daughter face a risk that is anything more than a mere possibility. [33] Fourteen months in Jalisco is a significant period of time, and that period of time without being contacted or harmed is good evidence that there is not, on a balance of probabilities, a serious possibility of persecution, or a risk to life or risk of cruel and unusual treatment or punishment or torture. [34] With respect to the second prong of the IFA test, XXXX argues that Merida is not a reasonable IFA in light of the fact that she would be forced to take a lower-paying job; would not have access to psychiatric help; and would have to live in hiding due to her fear. [35] I am not convinced by these arguments. Having to take a lower-paying job than she would be able to obtain in Canada does not constitute undue hardship. I acknowledge XXXX evidence regarding her mental state. However, there is a lack of documentary evidence to support the allegation that XXXX would not have access to psychiatrist help in Merida. For the reasons set out previously, I find that XXXXand her daughter would not have to live in hiding, as there is a lack of evidence to support that it is necessary. [36] While it may be a difficult transition, XXXX has demonstrated a proven ability to relocate. XXXX testified that she has a GED, and she spoke English at the hearing. Despite the difficulty of finding a job or housing that she referred to in her testimony, XXXX indicated at the RPD hearing that she was able to obtain a job at a XXXX XXXXin the XXXX XXXX, and that she was able to obtain housing for her and her daughter during the fourteen months she spent in Jalisco. [37] For all the reasons set out above, I find that XXXX has not met her burden to demonstrate that she does not have an IFA in Merida. CONCLUSION [38] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. (signed) Derek Vermette Derek Vermette August 5, 2020 Date 1 CD Audio, RPD Hearing, 00:06:55 to 00:07:16. 2 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 3 Section 110(4) of the IRPA. 4 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 5Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 6 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (FCA). 7 Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 FC 164 at para. 15 (C.A.). 8 CD Audio, RPD Hearing, 00:22:42 to 00:24:00. 9 CD Audio, RPD Hearing, 00:31:17 to 00:33:15. 10 CD Audio, RPD Hearing, 00:34:03 to 00:34:15. 11 CD Audio, RPD Hearing, 00:28:58 to 00:31:12. 12 CD Audio, RPD Hearing, 00:58:35 to 00:59:04. 13 CD Audio, RPD Hearing, 00:54:15 to 00:55:01. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-05329 VB9-05330 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