TB7-11183

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 File No. / N° de dossier de la SAR : TB7-11183 TB7-11184 TB7-11185 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 16, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Simon Wallace Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) XXXX XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the "Principal Appellant" or "PA"), his wife XXXX XXXX XXXX and their minor son, XXXX XXXX XXXX, citizens of Mexico, appeal a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. They have submitted new evidence in support of this appeal. The Appellants are requesting an oral hearing. The Appellants ask the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellants are Convention refugees or persons in need of protection. In the alternative, the Appellants request that the matter be returned to the RPD for a new hearing under a differently constituted panel. BACKGROUND [2] The PA and his family lived in Vera Cruz state where the PA owned a mechanic shop. In January 2017, the PA was kidnapped from his shop, forced into the trunk of a vehicle and taken away. Shortly thereafter, the police began pursuit of the kidnapper's vehicle. One kidnapper was killed and two arrested. The PA believes that the kidnappers were members of Los Zetas. RPD's Reasons [3] In its reasons, the RPD found that there was insufficient evidence to confirm that Los Zetas were involved in the PA's kidnapping. The panel also found that state protection in Mexico is adequate and that a viable internal flight alternative (IFA) exists for these Appellants in Cancun. [4] Pursuant to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. Appellants' Issues [5] The Appellants raise five issues at the RAD: a. What is the correct standard of review? b. Should the new evidence be admitted? c. Did the RPD err with respect to its "agent of persecution" analysis? d. Did the RPD err with its state protection analysis? e. Did the RPD err with respect to its IFA analysis? f. Did the RPD err when it gave little or no weight to four news articles disclosed prior to the hearing? ANALYSIS Determinative Issue [6] The determinative issues in this appeal are the availability of adequate state protection and the availability of a viable IFA. Standard of Review [7] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.1 Admissibility of New Evidence [8] The Appellants submitted new evidence with their Appeal Record. [9] Subsection 110(4) of the IRPA provides that the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented at the time of the rejection of their refugee claim. [10] If the proposed new evidence does meet the requirements of subsection 110(4), I must then apply the analysis set out in the Federal Court of Appeal's decision in Raza2 as subsequently modified by the same court's decision in Singh;3 effectively, I will assess the credibility and relevance of the evidence in order to determine whether it is admissible. [11] The Appellants presented four pieces of new evidence in support of this appeal: i. Statutory Declaration of the PA; ii. Letter from journalist Mr. XXXX XXXX, dated June 15, 2017;4 iii. Letter from PA's brother; and iv. Letter from PA's mother. [12] In deciding whether to allow an application to submit new evidence I must consider whether the new evidence meets the test in subsection 110(4) of the IRPA. Then I will consider the document's relevance and credibility. [13] The Appellants argue that the new evidence was not available at the time of the decision as the proposed new evidence describes events that "likely took place after the refugee hearing". In the alternative, counsel argues that the Appellants concede that the exact date of the kidnapper's release from prison is unknown, but it is clear that this evidence only became available to the Appellants after the information was leaked to a journalist who then passed the information on to the Appellants. [14] Counsel further argues that the evidence is relevant as it relates to the Appellants in clear and specific ways and concerns one of the kidnappers involved with the PA. Counsel argues that this evidence will assist the RAD in its determination of the identity of the agents of persecution and it also raises serious questions about state protection. [15] Counsel argues that the sole remaining question is the credibility of the documents. To that effect, counsel reminds the RAD that the new evidence is consistent with the US DOS Report5 which speaks to the collusion between criminal gangs and corrupt state officials. The information comes from a reliable source, a journalist. The journalist has previously presented evidence by way of a letter which was not questioned by the panel regarding the letter's credibility and reliability. The evidence of the journalist is corroborated by the letters from the PA's mother and brother. [16] I have read over the evidence and have assessed it as follows: 1) The Statutory Declaration is not new evidence. It is merely as statement by the PA re-iterating his story. It does not meet the requirements of subsection 110(4) as there is nothing evidentiary in the declaration that is new. 2) The letter from the journalist is interesting. I have canvassed the internet in search of the news media name on the letterhead of the letter by MrXXXX XXXX and found it without problem. "ParandOreja.com" is a website in Spanish obviously dealing with news events, local, national and international. Under the heading of "Columns", Mr. XXXX appears. This strikes me as a legitimate news magazine (online) and the journalist who wrote the letter appears to me to be credible as well. For these reasons, I will accept counsel's argument that even though there is no way to determine the exact date of the release of the prisoner, the journalist, who received the "tip" advised the Appellants long after the RPD decision had been rendered. I find that this information was not readily available to the Appellants prior to the decision by the RPD and therefore passes the test of subsection 110(4) of the IRPA. It's obviously relevant and credible and is therefore admitted into evidence. 3) The letter from the PA's brother is dated June 18, 2017 so it postdates the date of the RPD decision. It speaks to the release of one of the kidnappers of the PA and supports the document from the journalist. I accept it into evidence as it meets the test of subsection 110(4) of the IRPA and is relevant and credible. 4) The letter from the PA's mother is dated June 18, 2017 so it postdates the date of the RPD decision. It speaks to the release of one of the kidnappers of the PA and supports the document from the journalist. I accept it into evidence as it meets the test of subsection 110(4) of the IRPA and is relevant and credible. Oral Hearing [17] The Appellants have requested an oral hearing; however, even though I have admitted new evidence into the appeal, I find that there is insufficient reason to hold such a hearing. The decision I make will be based on facts and law. As the actual credibility of the Appellants is not the concern here, the request for an oral hearing is dismissed. Arguments [18] Counsel argues that the panel erred in its analysis of just who the agent of persecution actually was and at the same time, erred by not properly assessing the news article evidence6 which was adduced in support of the claim. Counsel argues that the panel was "troubled" because these news articles which were specifically dealing with the PA's kidnapping, never mentioned Los Zetas but instead referred to the kidnappers as "criminals" or "thugs". Counsel further argues that the PA explained to the panel that journalists do not write the names of the cartel in their stories because they fear being killed if they do. [19] Counsel's argument may be correct, that is, that some journalists will not write that Los Zetas committed the particular offense and that may be the case at hand; however, there was insufficient evidence adduced to make this conclusion anything more than pure speculation on the part of the Appellants. Even if news media often do not use the name of a particular gang, it does not translate to every crime reported being one committed by that gang. Therefore, I find that the panel did not commit an error in its findings on this issue based on the available evidence at the time. [20] Even considering the other two articles7 counsel had adduced prior to the decision, immediately after the hearing, both of which were refused by the panel with no explanation, I must find that it is still speculation at this point as to the identity of the criminal's affiliation. [21] Counsel argues that the panel erred when it discounted the Appellant's mother's original letter8 which states that she had received two telephone calls from a man identifying himself as the commander of the Zetas; however, the panel found that this witness had admitted to being distraught at the time of the calls and was unable to remember details such as the "nickname" used by the caller. The mother also admitted to not knowing exactly what was happening when she received these calls. The panel coupled these facts with the issue of confusion in the PA's testimony surrounding these calls and with the other letter9 which only said that the perpetrators of the kidnapping were "presumed" to be Zetas. Given these issues, I find that the panel made a logical decision at the time. [22] However, in light of the new evidence admitted by me, which is the journalist's document, and the two supporting letters, it becomes apparent that the agent of harm has now been properly identified as belonging to the Zetas. I accept that and find that to be true. Now, I must analyze the possibility of IFA in regards to the Zetas as opposed to regarding a common thug. [23] I have accepted that the kidnappers were, on a balance of probabilities and based on the evidence of the journalist, members of Los Zetas which is a gang of extremely violent criminals running Vera Cruz state with much impunity. [24] The panel had suggested an IFA to Cancun, Mexico and counsel has argued that the panel did not reference a single piece of evidence about Cancun. Counsel further argues that the panel erred when it refused an adjournment to enable counsel to make inquiries about Cancun as a viable IFA. [25] The panel denied the adjournment explaining to counsel that IFA is a common issue in Mexican claims. Counsel argues that although IFA may be common in Mexican claims, Cancun is not so common. Counsel argues that by denying his request for an adjournment, the panel has denied the Appellants an opportunity to make inquiries and submissions on the proposed IFA. [26] I disagree with counsel on this issue. In the first place, IFA was identified at the beginning of the hearing as an issue and was therefore placed before the Appellants at that time. In the second place, there was nothing preventing counsel from requesting an opportunity to make post-hearing submissions specifically on the proposed IFA. The panel identified the IFA at about 15 minutes into the hearing, while setting out the issues to be explored during the hearing. At that time, counsel made no protest regarding the IFA; however, as previously mentioned, counsel could have, at any time during the hearing, requested an opportunity to make post-hearing submissions. Whether counsel chose to make said submissions was counsel's choice. There was no error on the part of the panel in denying an adjournment for the reason it was requested. [27] In regards to the IFA, I have canvassed the National Documentation Package (NDP) and take special note of item 7.7, a document entitled, "Mexico, Organized Crime and Drug Trafficking Organizations (DTOs)". This document speaks directly to all of the DTOs in Mexico, who each DTO is aligned with or is fighting against and where each has its base of power. For example, the Los Zetas, once very powerful but in recent years, much less so, has its base of operations in Vera Cruz State. [28] Cancun is in the state of Quintana Roo, on the Yucatan Peninsula. Of greater importance is the fact that Cancun and Quintana Roo are the home base to the Gulf Cartel. According to this same document, the Gulf Cartel is in an ongoing fight with the weakened Zetas for territorial control in the northeastern Mexico states. The ensuing bitter conflict between the Zetas and the Gulf Cartel has been identified as the most violent in the history of organized crime in Mexico. [29] This bitter rivalry between the Zetas and the Gulf DTO tells me that there is less than a mere possibility that the Zetas would venture into Gulf territory for no other reason than to hunt down and harm these Appellants. It would certainly be unlikely that the Gulf DTO would co-operate with the Zetas in any way to expose the Appellants to any danger from the Zetas. The same document also speaks to the fact that the experts mostly agree that the Zetas organization is no longer as powerful as it was during the height of its dominance in 2011 and 2012. [30] I find that the Appellants do have a viable IFA to Cancun for all the reasons indicated by the panel and because of the strong issue that the Zetas are not known to be operating in Quintana Roo state which is dominated by the Gulf DTO, the Zetas' major rival. [31] As the Zetas are not in Cancun, there is no issue with state protection against the Zetas, there. Summary [32] As IFA is a determinative issue and I find that there is a viable IFA for these Appellants, regardless of the fact that the agents of harm are the Zetas, I find that these Appellants are not Convention refugees nor persons in need of protection. Disposition [33] The RAD has found that the RPD decision will stand. CONCLUSION [34] Pursuant to paragraph 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection. This appeal is dismissed. (signed) "David Lowe" David Lowe January 16, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 3 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96. 4 Exhibit P-2, Appellants' Record, pgs. 86-87. 5 Exhibit RPD-1, RPD Record, National Documentation Package (NDP) for Mexico, March 31, 2017, item 2.1. 6 Exhibit RPD-1, RPD Record, Exhibit 6, Tabs A, B, C and D, pgs. 165-181. 7 Exhibit P-2, Appellants' Record, pgs. 64-75. 8 Exhibit RPD-1, RPD Record, Exhibit 6, Tab G, pgs.194-195A. 9 Exhibit RPD-1, RPD Record, Exhibit 6, Tab I, pgs. 199-201. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-11183 TB7-11184 TB7-11185