MC0-08096

000 RAD File No. / No de dossier de la SAR : MC0-08096 MC0-08097 / MC0-08098 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 XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision January 27, 2021 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the persons who are the subject of the appeal Me Alfredo Garcia Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX XXXX, you, your spouse and her minor daughter are citizens of Mexico and you claim that you fear persecution or a risk to your lives in Mexico because of the Cartel Jalisco Nueva Generación [Jalisco New Generation Cartel].1 [2] The Refugee Protection Division (RPD) found that you were not credible.2 [3] On appeal, you submit that the RPD erred.3 [4] After analyzing your record, I conclude that the RPD did not commit the errors that you allege. [5] In light of this conclusion, your appeal is dismissed. ANALYSIS OF THE APPEAL [6] The role of the Refugee Appeal Division (RAD) is not to carry out a de novo consideration of refugee protection claims, but rather to determine whether the RPD erred as alleged.4 I conducted my own analysis of the record, including listening to the hearing before the RPD,5 reading the transcript6 and reading the documentary evidence. I am of the opinion that it is the correctness standard that must be applied.7 A. The errors that you allege the RPD made [7] The Refugee Appeal Division Rules provide that the person who is the subject of the appeal must identify: (i) the errors that are the grounds of the appeal, and (ii) where the errors are located in the RPD's decision or in the transcript or in any recording of the hearing.8 [8] In your memorandum, you submit that the RPD rendered a decision based on erroneous findings of fact or law, made in a perverse or capricious manner, or without regard to the material before it and in a manner inconsistent with the purpose and spirit of the legislation.9 [9] Specifically, you criticize the RPD for: - failing to respect the principle that sworn testimony is true unless there is a valid reason to doubt its truthfulness;10 - failing to respect the principle of procedural fairness, when it never set out its concerns regarding the lack of consent from the father of the young minor daughter and yet drew a negative inference as to your credibility from your answers;11 - conducting a peripheral and microscopic analysis of the port of entry forms;12 - failing to consider your profile, in other words the fact that you experienced several incidents with your agents of persecution, their family or the police officers;13 - failing to consider evidence that is contrary to its conclusions;14 - failing to consider relevant documentary evidence;15 - mixing up its findings of credibility and insufficient evidence or its probative value.16 B. Based on my own analysis, the Refugee Protection Division did not commit the errors you allege [10] After conducting my own analysis of your record, I conclude that the RPD did not commit the errors you allege. In other words, respectfully, your arguments are without merit. Here is why. [11] When they swear to the truth of certain allegations, refugee protection claimants are presumed to tell the truth. However, this presumption is rebuttable where the evidence is inconsistent with the testimony, or where the RPD is unsatisfied with the explanation for those inconsistencies.17 The RPD may draw negative inferences based on implausibilities, inconsistencies or omissions. It is the entirety of the evidence that must be assessed.18 [12] After summarizing your allegations19 in its decision, the RPD states that the determinative issue is your credibility20 and it explains why, in its opinion, you are not credible: - because you did not justify why you did not have the written consent of your stepdaughter's father with you, when she was a minor at the time;21 - because there were differences between the information in the 5669 immigration forms and your testimony regarding your addresses and your jobs;22 - because the last threat you received was left at one of your former addresses;23 - because the letter regarding your stepdaughter's problems with XXXX does not mention what caused these problems.24 [13] Caution must be exercised with respect to information provided in Canadian port of entry forms. It would be an error to impugn the credibility of the refugee protection claimant simply because the information provided at that time lacks details.25 However, it is not forbidden to analyze it and determine whether it affects the truthfulness of his allegations.26 [14] During the RPD hearing, you were asked several questions regarding contradictions, discrepancies and inconsistences between your testimony and the information you provided in the IMM 5669 immigration forms, both with respect to your addresses and your jobs.27 You signed these forms after the information they contained was recorded electronically. By signing them, you declared that you understood that any misrepresentation constituted an offence under section 127 of the Immigration and Refugee Protection Act (IRPA).28 [15] In my opinion, by questioning you about this and identifying contradictions between your testimony and the information you provided in those forms, the RPD did not err. I add that it arrived at its conclusions after considering your explanations. Like the RPD, I am of the opinion that these explanations are not acceptable. Stating that [translation] "you thought that it had been a mistake not to mention all your addresses," that "you did not remember exactly when you lived at the addresses" and that "you may have indicated it in general," or even that you did not indicate what your jobs were "to generalize because you intended to enter the country in connection with your stepdaughter's health issues" is unacceptable when the questions on the form were very clear. For example, at question 10, you were asked to list all addresses where you have lived in the past 10 years, not to exclude any period of time and not to merely use P.O. box addresses. At question 6, you were asked to provide all the details of your personal history, including jobs, for every period of the past 10 years and, if you were not working, to indicate what you were doing. [16] Now, with regard to the attestation of employment dated XXXX XXXX XXXX 2017, and signed by XXXX XXXX XXXX in my opinion, it was not necessary for the RPD to make specific reference to it in its decision, when it is presumed to have considered all the evidence. Furthermore, while a tribunal need not refer to every piece of evidence presented, the more significant a piece of evidence is, the more likely it is that a failure to make reference to it will result in a finding by the Federal Court that the decision was unreasonable, especially when it appears to be a marked contradiction to a finding of the RPD.29 [17] This attestation indicates that you worked for the company XXXX from XXXX XXXX XXXX 2016, to XXXX XXXX XXXX 2017, as a heavy equipment operator (excavator, retro excavator, elevator, front manipulator) on major work for that company in the state of Quintana Roo, and on real estate developments XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXXandXXXX XXXX XXXX XXXX XXXX, in Cancun.30 [18] In your Basis of Claim Form (BOC Form), you state that your problems began at the end of XXXX 2017, when you were working for XXXX XXXX which was in charge of the construction of social housing, as an operator and person responsible for distributing various types of material. You also state that, on a Saturday in XXXX 2017, the individual in charge of distributing marijuana, nicknamed XXXX XXXX, who works for the Jalisco Nueva Generación cartel, proposed that the operators distribute this product and he would pay them, which you refused to do. You then state that XXXX XXXX approached you on Wednesday of the following week, but you still refused. Then on Saturday of the same week, XXXX XXXX and his friend, nicknamed XXXX XXXX, threatened you and you discussed this with your boss, XXXX XXXX. You then state that on XXXX XXXX XXXX 2017, you were transferred to the XXXX XXXX on the outskirts of Cancun and that on XXXX XXXX XXXX 2017, when you went out to celebrate your spouse's birthday at a restaurant, you and she were beaten and you were taken to hospital. You also state that on XXXX XXXX XXXX 2017, you saw XXXX XXXX with some other individuals while you were working with your machine on the section of the sea walkway and that you then decided to quit.31 [19] During your testimony before the RPD, XXXX XXXX XXXX XXXX, you stated that you had worked for the company XXXX for about a year, between 2016 and 2017, as a blacksmith in Cancun. Then, when asked to identify who you feared in Mexico, you stated that you feared being recruited by the Jalisco Nueva Generación cartel, but that you had always refused. When questioned as to why the members of this cartel would absolutely want to recruit you when there are so many potential recruits in Mexico, you stated that it was because you were very easy to identify for the distribution of drugs as you used to drive all around the site with the machine. You added that they wanted you to deliver packages-containing drugs--for them, wherever they wanted, and one day, on Sunday, XXXX XXXX XXXX 2017, while you were out buying material for your job as a blacksmith, they pointed a gun at you, told you that you would be forced to do it, beat you up and told you that they knew where your daughter went to school.32 [20] Yet, the attestation of employment indicates that you stopped working for XXXX on XXXX XXXX XXXX 2017, but does not specify that you quit at that time because of threats made against you by members of the cartel. Furthermore, it does not contain any information regarding threats made against you on a Saturday in late XXXX 2017, again by these members. Yet, in your BOC Form, you state that you had informed XXXX XXXX XXXX, the same person who signed that document. In my opinion, this attestation does not contain information that is contrary to the RPD's conclusions concerning the differences between the information in your immigration forms and your testimony regarding your addresses and jobs that seriously undermined the credibility of your allegations. Not to mention the fact that some of the information in this attestation is contradicted by another letter, signed on XXXX XXXX XXXX 2019, in Valladolid, which you submitted in evidence and which states that for two years, therefore since on or about XXXX XXXX XXXX 2017, you had been employed by this company on a permanent basis.33 [21] As for the letter concerning your stepdaughter's XXXX issues,34 it is clear that it does not contain any information that would make it possible to establish that these issues are related to the threats you allege were made against you by the cartel members. [22] With regard to your argument that the RPD failed to respect the principal of procedural fairness because it had not set out its concerns regarding the lack of consent from your minor stepdaughter's father, I am of the opinion that it is without merit. During the hearing, the RPD expressed its concerns and asked you questions in that regard35 and it stated that one of the issues to be analyzed was the credibility of your allegations.36 [23] In more general terms, based on my own analysis of your record, the RPD did not commit the error of conducting a microscopic analysis of your testimony and your documentary evidence. Rather, it fulfilled its role of determining the merits of your refugee protection claims, after careful preparation, and after assessing as objectively as possible the evidence before it and applying the relevant legislation. [24] Lastly, as you failed to establish that the evidence concerning the existence and practices of cartels in Mexico was relevant to your situation,37 the RPD did not have to analyze the general documentary evidence in this regard. CONCLUSION [25] For these reasons, I confirm the determination of the RPD, namely, that you, your spouse and her minor daughter did not establish that you have a well-founded fear of persecution under section 96 of the IRPA, or that you would be subjected to a risk under section 97 of the IRPA if you were to return to live in Mexico. [26] Your appeal is dismissed. (signed) Alain Bissonnette Me Alain Bissonnette January 27, 2021 Date IRB translation Original language: French 1 Your Basis of Claim Forms and those of your two daughters are reproduced at pages 13 to 100, and the documents and accommodation request that you presented before the Refugee Protection Division (RPD) are reproduced at pages 256 to 299 of the scanned version of the RPD record. 2 RPD Reasons and Decision, February 26, 2020, pages 5 to 12 of the scanned version of the RPD record. 3 Your memorandum, August 17, 2020, which is reproduced at pages 6 to 18 of the scanned version of the appeal record. 4 Dahal v. Canada (Minister of Citizenship and Immigration), No. IMM-330-17, Crampton, December 4, 2017; 2017 FC 1102, paragraphs 30 and 31. Kanawati v. Canada (Minister of Citizenship and Immigration), No. IMM-6486-18, Norris, January 3, 2020; 2020 FC 12, paragraphs 23 and 24. 5 Recording of the hearing held before the RPD on January 28, 2020, 00:01 to 02:56:41, that is, from one second to two hours, 56 minutes and 41 seconds. 6 Transcript of the hearing held before the RPD on January 28, 2020, 56 pages. 7 Canada (Citizenship and Immigration) v. Huruglica, No. A-470-14, Gauthier, Webb and Near, March 29, 2016; 2016 FCA 93. 8 Refugee Appeal Division Rules, SOR/2012-257, subparagraph 3(3)(g)(ii). 9 Your memorandum, supra, endnote 3, page 18 of the scanned version of the appeal record. 10 Ibid., paragraphs 8 and 9. 11 Ibid., paragraphs 10 to 21. 12 Ibid., paragraphs 22 to 46. 13 Ibid., paragraphs 47 to 50. 14 Ibid., paragraphs 51 to 56. 15 Ibid., paragraphs 57 to 62. 16 Ibid., paragraphs 63 to 74. 17 Lawani v. Canada (Minister of Citizenship and Immigration), No. IMM-21-18, Gascon, September 17, 2018; 2018 FC 924, paragraph 21. 18 Edmond v. Canada (Minister of Citizenship and Immigration), No. IMM-112-17, Roy, July 4, 2017; 2017 FC 644, paragraphs 22 and 27. 19 RPD Reasons and Decision, supra, endnote 2, paragraph 4. 20 Ibid., paragraph 6. 21 Ibid., paragraphs 8 to 11. 22 Ibid., paragraphs 12 to 25. 23 Ibid., paragraphs 26 to 31. 24 Ibid., paragraphs 32 and 33. 25 Cetinkaya v. Canada (Minister of Citizenship and Immigration), No. IMM-3362-11, Russell, January 4, 2012; 2012 FC 8, paragraph 51. 26 Muhendanganyi v. Canada (Minister of Citizenship and Immigration), No. IMM-1436-14, Harrington, March 4, 2015; 2015 FC 269, paragraph 13. 27 Transcript of the hearing, supra, endnote 6, pages 10, 11, and 14 to 28. 28 These forms are reproduced at pages 141 to 150 of the scanned version of the RPD record. 29 Cetinkaya, supra, endnote 25, paragraph 66. 30 This attestation and its translation are reproduced at pages 285 and 286 of the scanned version of the RPD record. 31 This information is included in your written account or story, pages 28 to 50 of the scanned version of the RPD record. 32 Transcript of the hearing, supra, endnote 6, pages 29, 30 and 31. 33 This letter and its translation are reproduced at pages 257 and 258 of the scanned version of the RPD record. 34 This letter and its translation are reproduced at pages 259 and 260 of the scanned version of the RPD record. 35 Transcript of the hearing, supra, endnote 6, pages 9 and 10. 36 Ibid., page 17. 37 Fodor v. Canada (Minister of Citizenship and Immigration), No. IMM-6279-18, McHaffie, February 7, 2020; 2020 FC 218, paragraphs 38 to 44. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-08096 MC0-08097 / MC0-08098 RAD.25.02 (January 2020) Disponible en français 8 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