TC0-10076

RAD File / Dossier de la SAR : TC0-10076 TC0-10077 / TC0-10078 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 XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Ottawa, ON Appel instruit / entendu à Date of decision March 10, 2021 Date de la décision Panel Aaron David Smith Tribunal Counsel for the persons who are the subject of the appeal Temitope T Ayodele 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] I dismiss this appeal. [2] XXXX XXXX XXXX XXXX (Principal Appellant), XXXX XXXX XXXX XXXX (Minor Associate Appellant), and XXXX XXXX XXXX (female Associate Appellant) are citizens of Mexico. [3] The Appellants allege a fear of persecution or harm in Mexico due to threats to their lives from the El Chapo de Oaxaca cartel (the cartel) and the Mexican police assisting the cartel. The Principal Appellant was designated by the Refugee Protection Division (RPD) to represent the Minor Associate Appellant. [4] The RPD found the Principal Appellant was not credible and therefore the Appellants did not establish that they would face a serious possibility of persecution or that they would, on a balance of probabilities, be personally subjected to a danger of torture, to a risk to life, or to a risk of cruel and unusual treatment or punishment, if they were to return to Mexico. [5] The Appellants argue the RPD erred in assessing credibility. [6] The Appellants submit new evidence on appeal but do not request an oral hearing. [7] The determinative issue in this appeal is credibility. [8] After an independent review of the record, analyzing all the evidence, including reading the transcript of the hearing before the RPD, and considering all the Appellants' arguments, I find that the RPD's decision is correct. The Appellants have not established that they would face a serious possibility of persecution or that they would, on a balance of probabilities, be personally subjected to a risk to life or a risk of cruel and unusual treatment or punishment, or a danger of torture, upon return to Mexico. DECISION [9] I dismiss the appeal. The RPD was correct in finding that the Appellants are neither Convention refugees nor persons in need of protection. BACKGROUND [10] The Appellants allege that following the passing of the Principal Appellant's spouse and father of the female Associate Appellant on XXXX XXXX XXXX 2003, the Principal Appellant began receiving anonymous telephone calls insulting whoever answered the phone and threatening to kidnap the Principal Appellant's daughters, including the female Associate Appellant. The calls allegedly increased to 20 calls in a month, and then became more frequent until the calls stopped in late June 2003, when the paternal grandfather of the Principal Appellant's daughters began receiving the same insulting calls and threats to kidnap his granddaughters. The telephone calls to the Principal Appellant resumed in August 2003 and based on advice from the Principal Appellant's mother, the Principal Appellant and her daughters moved to Iguala Guerrero, Mexico, in late August to reside with her. The Appellants allege the Principal Appellant was followed by a car in December 2003 and this prompted them to move to Cuernavaca, Mexico, where they intended to move prior to this incident. [11] In XXXX 2005, the Principal Appellant travelled to Juchitan, Mexico, to pay property taxes on land she owned there. While waiting to pay with her brother, she alleges her brother noticed people in the waiting room shielding their faces and moving to be closer to them when they moved their seats. Another brother outside reported that he was being followed in the car. They were allegedly followed and eventually went to a police station. Since there were only two police officers handling administrative issues and no police with cars, they were told to leave immediately as no one was there to assist them. They returned to Cuernavaca, Mexico, where the phone calls allegedly continued despite changing her phone number. In 2010, the Principal Appellant approached the police about the telephone calls, and she was told to change her phone number. [12] In May 2018, the Principal Appellant, while driving for XXXX, was stopped by a police officer who accused her of going the wrong way on a street, insulted her, issued her a ticket and took her license plate. The Principal Appellant consulted a lawyer and she eventually recovered her license plate. [13] On June 20, 2018, the Principal Appellant received a telephone call from someone identifying themself as a member of the cartel who demanded money from her knowing that she had sold a property. The Principal Appellant alleges she was told that the cartel had taken over the property that had belonged to the Principal Appellant's husband and stated that her brother-in-law XXXX had given them her information. The cartel also indicated it knew she sold her home in Juchitan, Mexico, and was advised that she had 60 days to pay the cartel one and a half million pesos or else she would be killed, her children kidnapped and raped. The caller also claimed responsibility for the theft of her car's license plate. [14] As a result of the telephone call, the female Associate Appellant departed Mexico for the United States on XXXX XXXX, 2018. The Principal Appellant and the Minor Associate Appellant left Mexico and arrived, directly, in Canada on XXXX XXXX, 2018. The female Associate Appellant entered Canada on XXXX XXXX XXXX 2018. The Appellants made their claims for refugee protection on November 8, 2018. NEW EVIDENCE The evidence presented by the Appellants is rejected [15] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. that you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [16] 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.2 [17] The Appellants submit as new evidence a Discharge XXXX XXXX XXXX XXXX from XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX for the Principal Appellant. The Appellants submit that the Report is new since the Principal Appellant sought treatment, between XXXX XXXX XXXX 2020 and XXXX XXXX XXXX 2020, following the deterioration of her mental health. The Report indicates the Principal Appellant was diagnosed with XXXX XXXX XXXX and XXXX XXXX on January 28, 2019 and indicates XXXX XXXX was initiated on XXXX XXXX, 2020. The RPD's decision is dated August 6, 2020 and the Discharge Report of XXXX XXXX was signed on September 5, 2020. While the Principal Appellant's initial diagnosis occurred prior to the RPD's decision, as did her first XXXX XXXX sessions, I find the Discharge Report arose after the RPD's decision. [18] Since the credentials of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. are considerable and there is no information in the report to indicate it is unreliable, I find the report to be credible. The information presented in the report is new, in that it arose after the RPD's decision and presents information that was previously not included in the record. However, I do not find the information provided in the report to be relevant to the Appellants' claims for protection. The Appellants have not argued the Principal Appellant's mental state impeded her ability to testify. The report indicates, "There were no indications of any abnormalities in her thought process; her thought content was clear and organized. She was focused and responded rationally. Ms. XXXX was forthcoming and provided detailed answers to the therapist." After a review of the record, including the transcript of the hearing, I conclude the same with respect to her testimony at the RPD hearing. The Appellants argue returning the Principal Appellant to Mexico may cause the deterioration of her mental health condition. The possible deterioration of the Principal Appellant's mental state should she return to Mexico is not relevant to the central allegations of her claim for protection concerning the events that she alleges transpired to cause the Appellants to fear the El Chapo de Oaxaca cartel. The Discharge XXXX XXXX XXXX XXXX is not admissible. ANALYSIS [19] My role is to look at all the evidence and decide if the RPD made the correct decision.3 The RPD did not err in assessing credibility Assessment of alleged kidnapping threats [20] The Appellants' Counsel notes the RPD identified "gaping voids in the principal claimant's story"4 and concluded there was no evidence to indicate anyone in the Principal Appellant's family suffered consequences related to the threats. Counsel contends the RPD engaged in speculative reasoning regarding a lack of consequences and believed, as a result, that the Appellants' allegations were contrived. Counsel also asserts the RPD erred because it did not consider all incidents mentioned by the Principal Appellant and relied on the absence of documentary evidence to impugn the Appellants' credibility. I disagree. [21] The RPD determined the Appellants' allegations were contrived after considering the Principal Appellant's testimony that consequences did not result because they moved and changed their telephone numbers. The RPD noted that despite moving twice and changing their telephone numbers that the threats continued but did not result in the threat of kidnappings occurring. The RPD found that these moves would not have prevented the agents of alleged persecution from kidnapping members of the family if they intended to do so. The RPD determined that the kidnappings did not occur because the allegations were contrived as it found the Principal Appellant's explanation that kidnappings did not occur because they moved to be "unsatisfactory."5 I agree with the RPD since the initial allegation of threats to kidnap members of the family occurred in 2003, again in 2005 and 2012 before stopping until 2018 when the threats over the telephone allegedly resumed.6 It is reasonable to expect that if the alleged agents of persecution intended to kidnap family members, they would have done so within 15 years between the initial and the last alleged call. The RPD's finding was not based on speculation but on the gaps in communication between the alleged agents of persecution and the Appellants and the absence of any consequences. On a balance of probabilities, two relocations would not have dissuaded the alleged agents of persecution from carrying-out their kidnapping threats if they had intended to kidnap their family members. [22] Counsel's contention that the RPD did not consider specific alleged incidents is correct but I do not find those incidents7, on a balance of probabilities, relate to the kidnapping threats, with the exception of the Principal Appellant's traffic violation while driving XXXX and the last alleged threatening phone call that occurred in June 2018. The Appellants' allegations that they were being followed by the alleged agents of persecution is speculative in linking their perception that suspicious activity was connected to the kidnapping threats. I do not find the RPD erred in not assessing these events in relation to the kidnapping threats as there was no indication beyond the Appellants' suspicions that the activity was related. The RPD did consider the incident involving the traffic violation in May 2018 and the threatening telephone call in 20188 but did not find these allegations were credible and noted there was no corroborating evidence to support the allegations. I do not accept the submission that the RPD erred as I find the RPD did consider this evidence. [23] Counsel asserts the RPD relied on the absence of corroborating evidence to impugn the Appellants' credibility regarding the alleged kidnapping threats but does not provide examples to support the argument. I disagree as the RPD's credibility findings were made independently of a lack of corroborating evidence. In assessing the May 2018 incident when the Principal Appellant claims she was stopped for making a traffic violation, the RPD noted her explanation for believing she was being persecuted emanated from the police officer using rude language and acting aggressively.9 The RPD also noted that the Principal Appellant testified that it was a normal course of action for a license plate to be removed for such violations.10 The RPD found the allegations to be without foundation. The RPD noted there was no corroborative evidence indicating a judgement or settlement document to corroborate the outcome of the dispute. I find a document indicating resolution to the incident would have, on a balance of probabilities, confirmed the Principal Appellant's allegations regarding the event, including her allegation that her license plate was eventually returned to her. The RPD concluded that the single incident, regardless of the outcome, did not constitute persecution of the Principal Appellant by the police. Therefore, the RPD did not rely on the absence of corroborating evidence to make this determination or to impugn the Appellants' credibility but noted the absence of a document indicating resolution to the incident was not provided. The RPD did not err because it assessed the incident independently of corroborating evidence. The RPD also noted a lack of corroborating evidence in relation to the last threatening phone call allegedly received by the Principal Appellant in June 2018 that prompted her departure from Mexico. The RPD did not accept the allegation as credible and trustworthy and stated "Other than the principal claimant's assertion, there is no independent evidence that corroborates this allegation."11 The RPD did not err because it did not rely on corroborating evidence to impugn the Appellants' credibility but noted there was no corroborating evidence to counter its credibility determination. [24] Furthermore, the RPD specifically noted that corroborating evidence is not a requirement for a claim to be successful, testimony is always rebuttable and that the onus rests with the claimant to establish the claim by providing sufficient, credible and trustworthy evidence. The RPD also stated that it was mindful that in the absence of substantive credibility concerns, claimant testimony should be presumed to be true, as outlined in the jurisprudence.12 The RPD is not obligated to accept a claimant's allegations or explanations if it finds they do not account for credibility issues identified in evidence. In Maldonado v. M.E.I, the Court found the presumption of truthfulness is rebutted when there are reasons to doubt a refugee claimant's truthfulness.13 In this case, the RPD detailed its credibility concerns independent of the absence of corroborating evidence and therefore, it did not err. Furthermore, the RPD asked the Principal Appellant if she had the final judgement concerning the traffic violation and she responded, "No charges I ended up without charges against me that I should go and pick up the license plate" and then stated she did not have a final judgement.14 I find it more likely than not that a final judgment would have been issued with respect to a traffic violation in order for the Principal Appellant to retrieve her car's license plate or issued upon receipt of her license plate. The Federal Court held that the Board can require corroborative evidence in situations where the applicant can be reasonably expected to have such evidence available to them.15 As a result, I draw a negative credibility inference with respect to the allegations concerning the incident based on the Principal Appellant's response that she did not receive a judgement. Connection of XXXX to the alleged threats [25] Counsel contends the RPD "engaged minimally" with evidence of how the Principal Appellant's brother-in-law, XXXX, "exposed the family" to the cartel because the Appellants did not provide corroborating evidence. Counsel argues the RPD erred in relying "on the perceived absence" of evidence to rebut the presumption of truthfulness when "no credibility concerns were raised in this matter."16 I disagree. [26] The RPD assessed the credibility of the alleged discussion in the last threatening telephone call before the Appellants departed Mexico, including the assertion that the caller said that XXXX had informed the cartel about the Principal Appellant's land in Juchitan, Mexico leading for the demand for one and a half million pesos. The RPD asked the Principal Appellant how XXXX would have given the information to the cartel when he died in 2016 and the phone call is alleged to have occurred in 2018. The Principal Appellant responded that she gave the information to XXXX when she could not sell the properties prior to his death and was able to sell the properties in 2017. As discussed previously, the RPD did not accept the allegation as credible and trustworthy and stated there was no independent evidence to corroborate the allegation. The RPD did not use the absence of corroborative evidence to rebut the presumption of truthfulness: "Other than the principal claimant's assertion, there is no independent evidence that corroborates this allegation."17 Where there are valid reasons to doubt a claimant's credibility, the RPD may properly consider the lack of corroborating documents, where it doesn't accept the claimant's explanation for failing to produce that evidence. The RPD did not err because it did not rely on the lack of corroborating evidence to impugn the Appellants' credibility but noted there was no corroborating evidence to support the allegations it found lacked credibility and were not trustworthy. Counsel's assertion that no credibility concerns were raised is incorrect, as the RPD found the allegations lacked credibility and trustworthiness in determining the threats to the family were fabricated by the Principal Appellant to form a basis for her claim.18 [27] The allegation that XXXX provided the cartel with the Principal Appellant's telephone numbers and knowledge of her land sale is incidental to the central allegation of the claims, that the Appellants fear the cartel as a result of threatening phone calls and other alleged incidents. The RPD determined that the allegation of threats from the cartel lacked credibility. Having made this determination based on an assessment of the alleged threats from the cartel, an allegation of who provided the telephone numbers and land sale knowledge is a subsidiary detail to the main allegation that was found to lack credibility. The Appellants argue the RPD engaged minimally with evidence related to XXXX and his connection to the risk the Appellants faced in Mexico. I agree that the RPD engaged minimally with information related to XXXX but do not find this fatal to its determination since the allegations with respect to XXXX and his connection to the cartel are not relevant to the issue of whether or not the cartel had threatened the Appellants. [28] After reviewing the record, I adopt the RPD's determination regarding the cartel threats as my own. Furthermore, if the cartel intended to kill the Principal Appellant or kidnap and rape family members, it is reasonable to expect that the reason for these threats would have been indicated in the numerous alleged phone calls between 2003 and the final phone call in 2018. The Principal Appellant did not indicate in either her narrative or in testimony that the kidnapping threats were made in conjunction with any demands. The Principal Appellant testified that the "person that called identified himsel or herself as a member of El Chapo from Oaxaca"19 during the last call in 2018 that she described as the most fearful since the caller identified himself or herself, knew specific information about her land sale, threatened her life and to kidnap and rape her daughters, and demanded money. The content of this alleged last call was significantly different from the numerous calls over the prior fifteen-year period when the callers did not identify themselves as being part of the cartel or make an extortion demand. In her narrative, the Principal Appellant identified the caller as male20 but in testimony referred to the caller as "himself or herself."21 It is reasonable to expect that the Principal Appellant would have remembered whether the voice of the caller was either male or female given her testimony that the call was fearful enough to prompt the Appellants' departure from Mexico. On a balance of probabilities, I find the Principal Appellant's evidence was evolving and the allegation that the cartel called the Principal Appellant for the last time on June 20, 2018 was an embellishment to support the central allegation of the claims since the caller identified himself as a member of the cartel, linked XXXX to the cartel to account for the cartel's knowledge and made an extortion demand, which had not previously occurred over the course of 15 years. Police as an agent of persecution [29] Counsel submits that the Principal Appellant did not allege the police were agents of persecution but that the cartel was using the police to intimidate her. I agree with Counsel as the Principal Appellant testified that she believed the incident with the police in May 2018 was linked to the alleged threatening phone calls.22 However, I do not find the RPD assessing the incident with the police independent of consideration that the police were working as agents of the cartel is fatal to its decision. The last alleged phone call in June 2018 revealed the connection of this incident to the cartel but, as discussed previously, the RPD did not find the allegation of the last phone call to be credible or trustworthy. Since the Appellants connected their fear of the cartel to the police, in part through the phone call, and the RPD found the allegation regarding the phone call not credible, the RPD's finding regarding the police was not fatal to its decision. [30] The Principal Appellant included in her narrative that she was given a traffic ticket,23 as a result of the incident, and testified about the ticket,24 indicating that it is normal procedure for a license plate to be confiscated following a traffic violation.25 The Principal Appellant stated in testimony that she did not commit a traffic violation on June 20, 2018 and had video evidence as proof. On a balance of probabilities, the Principal Appellant was issued a ticket on June 20, 2018, and the police officer confiscated her license plate, as a normal course of action. It is more likely than not that the Principal Appellant proved her innocence with respect to the violation and had her license plate returned to her as a result. As discussed previously, on a balance of probabilities, I find the allegation that the cartel called the Principal Appellant for the last time on June 20, 2018 was an embellishment to support the central allegations of the claims, which included the allegation that the cartel revealed that they were behind her license plate being stolen. [31] The RPD stated in its decision that "there is no credible evidence that the claimants sought the help of the authorities or that the state was unable to protect the claimants."26 Counsel notes the Appellants submitted that they sought state protection on a number of occasions but that the police were not forthcoming. Counsel asks "what sort of corroborative evidence could the appellants produce if the police offered no assistance."27 [32] The RPD asked the Principal Appellant if she contacted the police following the last call on June 20, 2018 and the Principal Appellant responded that she did not because the police are corrupt, she had gone to the police in the past but to no avail, and if she had gone to the police and identified herself in writing that she would have been exposed to increased danger. The RPD found her response lacked credibility and concluded the Appellants did not avail themselves of state protection because the Appellants were not in the circumstances alleged by the Principal Appellant. I concur with the RPD. The lack of alleged assistance is a matter of police inaction but would not, on a balance of probabilities, preclude the issuance of a report detailing the Principal Appellant's allegations. It is reasonable to expect that the Principal Appellant could have obtained reports of her allegations that she made to the police prior to June 20, 2018 had she gone to the police regarding the threatening telephone calls. [33] Counsel argues the RPD erred in ignoring objective documentary evidence supporting the Principal Appellant's fear of the police in Mexico and their involvement with criminal organizations. I disagree. Counsel asserted the Appellants did not fear the police as separate agents of persecution, as discussed previously, and the well-documented involvement of police and criminal organizations does not substantiate the Appellants' central allegations to their claims for protection. The RPD found the central allegations to their protection claim lacked credibility, trustworthiness and foundation. I concur with the RPD. [34] The Appellants, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX have not established that they would face a serious possibility of persecution nor, on a balance of probabilities, that they would be personally subjected to a danger of torture, to a risk to life, or to a risk of cruel and unusual treatment or punishment, if they returned to Mexico. Therefore, the Appellants are neither Convention refugees, nor persons in need of protection pursuant to section 96 and subsection 97(1) of the Immigration and Refugee Protection Act (IRPA) respectively. CONCLUSION [35] I dismiss the appeal and confirm the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. Aaron Smith Aaron David Smith 10-03-2021 Date 1 Subsection 110(4) of the IRPA. 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385 3Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145 4 RPD-1, RPD record, RPD reasons, August 6, 2020, page 6, para. 16. 5 Ibid., page 6, para. 17. 6 RPD-1, RPD record, BOC, August 6, 2020, pp. 22-23, paras. 3-4, 6-7 ; page 24, paras. 12 & 15; page 25, para. 17; and page 26, para. 24. 7 P-2, Appellants' record, Appellants' Memorandum, at pages 79-80, para. 23. 8 RPD-1, RPD record,RPD reasons, August 6, 2020, page 7, paras. 24-26. 9 Ibid., at page 6, para. 20. 10 Ibid., at page 6, para. 18. 11 Ibid., at page 7, para. 26. 12 Ibid., at page 7, paras. 27-28. 13 Maldonado v. M.E.I., [1980] 2 FC 302 (C.A.). 14 Transcript of the hearing before the RPD on March 2, 2020, at page 16, para. 45 and page 17, paras. 5-30. 15 Lopera v. Canada (Ministre de la Citoyenneté et de l'Immigration), 2011 CF 653 (CanLII), at paras 29-34 ; Wokwera v. Canada (Citoyenneté et Immigration), 2012 CF 132 (CanLII), at para 39. 16 P-2, Appellants' record, Appellants' Memorandum, at page 84, para. 29 and page 86, para. 32. 17 Ibid., at page 7, para. 26. 18 RPD-1, RPD record, RPD reasons, August 6, 2020, page 5, para. 15. 19 Transcript of the hearing before the RPD on March 2, 2020, at page 8, para. 45. 20 RPD-1, RPD record, BOC, August 6, 2020, page 26, para. 24. 21 Transcript of the hearing before the RPD on March 2, 2020, at page 8, para. 45. 22 Ibid., at page 23, para. 10. 23 RPD-1, RPD record, BOC, August 6, 2020, pages 25-26, para. 22. 24 Transcript of the hearing before the RPD on March 2, 2020, at page 15, para. 45. 25 Ibid., at page 24, para. 10. 26 RPD-1, RPD record, RPD reasons, August 6, 2020, page 8, para. 34. 27 P-2, Appellants' record, Appellants' Memorandum, at page 89, para. 37. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TC0-10076 TC0-10077 / TC0-10078 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