VB9-08949

RAD File / Dossier de la SAR : VB9-08949 VB9-08950 / VB9-08951 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 XXXX Personnes en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision February 4, 2020 Date de la décision Panel M. Lee Tribunal Counsel for the persons who are the subject of the appeal Jane G. Rukaria 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 OVERVIEW [1] XXXX XXXX XXXX XXXX (Principal Appellant) and XXXX XXXX XXXX (Second Appellant), XXXX XXXX XXXX XXXX (Minor Appellant), citizens of Mexico, appealed a decision of the Refugee Protection Division (RPD), dated October 30, 2019, rejecting their claims for refugee protection. DETERMINATION [2] In accordance with paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA),1 the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's decision. BACKGROUND [3] The Appellants allege to fear persecution from two drug cartels in Mexico: Los Viagras (LV) and La Familia Michoacán (LFM). The Principal Appellants allege that these two cartels blame him for causing an altercation between the cartels, resulting in the death of an LV member. The Appellants came to Canada in XXXX 2018 and made their claims for refugee protection. [4] The RPD heard the refugee claims on October 8, 2019. It rendered a decision on October 30, 2019, denying their claims for refugee protection based on the determinative issue of an internal fight alternative (IFA) for the Appellants in Mérida, Yucatán. [5] The Appellants submit that the RPD failed to consider all the evidence and failed to analyze the motivation of the LV. The Appellants further submit that it was unreasonable to expect them to relocate to Mérida. The RAD carefully considered the merits of the appeal in its decision below. ANALYSIS Role of the RAD [6] According to the Federal Court of Appeal's ruling in Huruglica,2 the RAD will review decisions of the RPD on a standard of correctness after conducting an independent analysis of the evidence. [7] The RAD will defer to certain findings of the RPD where the RPD enjoys a meaningful advantage in assessing the oral evidence at the hearing. New evidence application [8] The Appellants are making an application to submit affidavits from the Principal Appellant, his brother, and his uncle, pursuant to subsection 110(4) of the IRPA. To be accepted, evidence must have arisen after the rejection of the claim, or that it was not reasonably available at the time or rejection, or that the person could not have reasonably been expected in the circumstances to have presented it at the time of rejection. At least one of the three criteria must be met in order to be accepted under subsection 110(4) of the IRPA. Affidavit from Principal Appellant [9] The Principal Appellant provided an affidavit in which he describes the reasons why he disagreed with the RPD's decision, and explained the ways in which he believed the RPD failed to consider his evidence from the hearing.3 The Principal Appellant also provided an additional reason why he did not believe he would be safe in the proposed relocation of Mérida.4 [10] The RAD finds that this evidence did not arise after the rejection of the claim, as the Principal Appellant raises some the same concerns as he did at the refugee hearing. The RAD finds that the Appellants were put on notice at the beginning of the hearing that the RPD was considering Mérida as a potential IFA, and they were represented by counsel. The RAD finds that the Appellants had ample opportunity to raise all the objections they wished to the proposed relocation at the time of rejection. Therefore, the RAD finds that the evidence provided in this affidavit was reasonably available to them at the time of rejection, and they could have reasonably been expected to have presented it at the time of rejection. The RAD finds that the Principal Appellant's affidavit does not meet any of the three criteria under subsection 110(4) of the IRPA, and it is rejected. Affidavits from brother and uncle [11] The RAD considered the affidavits of the brother and uncle collectively, since they discuss the same incident.5 Their accompanying declarations of the affidavits' veracity and their photo identification cards were also provided. The Principal Appellant's brother indicated that he was mistakenly identified as being the Principal Appellant, and was kidnapped on November 8, 2019 and held for three days.6 The brother also explained that he was only released after the cartel members phoned the Principal Appellant's uncle to confirm his identity.7 The brother further explained that the cartel members vowed to kill the Principal Appellant. Similarly, the uncle's affidavit indicates that he received a phone call from a cartel member on November 8, 2019, demanding that he verify the identity of the person they kidnapped.8 [12] The incident allegedly took place on November 8, 2019, and so, the evidence contained arose after the rejection of the claim. Therefore, the RAD finds that the affidavits meet at least one of the criteria of subsection 110(4) of the IRPA. [13] The RAD is also required to consider whether the new evidence is credible, relevant and new, in accordance with the Federal Court's criteria in Raza and Singh. The new evidence must meet all three of the criteria in order to be accepted. [14] On its face, the affidavits are credible evidence. They are accompanied by detailed declarations describing the identity of the affiant and the purpose of the sworn document, and signed by a public notary.9 Both affiants also included copies of their government-issued voter's cards.10 The RAD finds that the evidence is relevant to the claim, as it potentially proves that the agents of persecution continue to be interested in the Appellants. The evidence is new in the sense that discusses a recent incident that was unknown to the RPD at the time of the hearing. Therefore, the RAD finds that the affidavits meet all three of the criteria, and it is accepted as new evidence. The RAD will weigh the evidence in its decision. No oral hearing required [15] The Appellants are not seeking an oral hearing unless the RAD deems it fit.11 For an oral hearing to be granted pursuant to subsection 110(6) of the IRPA, the new evidence raise a serious issue with respect to credibility of the Appellants who are the subject of appeal, it must be central to the decision, and if accepted, would justify allowing or rejecting the refugee claim. All three criteria must be met in order for a hearing to be granted. [16] The RAD finds that the affidavits would not justify allowing or rejecting the refugee claim. While the affidavits show a potential ongoing interest in harming the Appellants, the RAD finds that the affidavits alone are insufficient to determining the outcome of the claim. The determinative issue in the claim was internal flight alternative, and so the RAD finds that it must assess the rest of the evidence before deciding whether or not to uphold or dismiss the claim. Therefore, no oral hearing will be granted. Mérida is a safe IFA for the Appellants [17] The determinative issue in the refugee claim was IFA. The RPD found that there was a viable IFA in Mérida, Yucatán, as the proposed location was safe and reasonable. [18] The Federal Court has determined that the decision-maker must be satisfied on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the suggested IFA.12 The claimant always bears the burden of proof to show that there is a reasonable chance that persecution will occur in the entire country and specifically in the suggested potential IFA.13 Secondly, the conditions in the suggested IFA are not such that it would be unreasonable in all the circumstances, including those particular to the claimant, to relocate and reside there.14 [19] The RPD found that the LFM would not be motivated to locate the Appellants in Mexico, if they were to return. None of the Appellants' supporting affidavits and letters indicate that there was any further interest by the LFM since the precipitating incident on May 24, 2018. The RPD further found that the Appellants' fear of the LV being able to locate them in Mérida was speculative.15 All of the LV's attempts to locate them have been in Michoacán. Furthermore, the LV is only known to operate in Guerrero and Michoacán. Mérida is 1,500 kilometres away from Michoacán.16 The RPD concluded that the objective evidence only showed a mere possibility that the LV would able to locate them as alleged.17 [20] The Appellants submit that the RPD ignored credible evidence that points to the ability and motivation of the agents of harm to track them.18 The Appellants cite a number of sources indicating that the Mexican justice system is inadequate and that the Appellants can be tracked due to the frequency and ease of data breaches.19 The Appellants further submit that the RPD failed to assess the motivation of the LV cartel to locate them in the proposed IFA. [21] At the hearing, the Appellants alleged that there were two cartels who were agents of persecution interested in harming them: the LV and the LFM. These are rival gangs with separate vendettas against the Principal Appellant, and they were not working together. However, the Appellants' memorandum focuses on the LV as the agents of harm. The Appellants did not dispute the RPD's findings that there is no motivation or interest on the part of the LFM cartel to harm the Appellants, if they returned to Mexico. After the RAD's independent analysis, the RAD agrees with the RPD and finds that the LFM are not motivated to find them, nor do they have the capacity to do so. The new evidence only indicates that the LV have made attempts to contact the Principal Appellant's family, and the support letters and affidavits provided at the hearing do not mention the LFM, and only indicate that the LV have made attempts to search for them. [22] The RAD also considered whether or not the LV would have the motivation and the capacity to persecute the Appellants in the proposed IFA of Mérida, if they were to return to Mexico. [23] However, every drug cartel differs in resources, influence and power in Mexico. Some cartels are national while others are regional. There is very little objective evidence about the LV specifically in the national documentary evidence. The Appellants provided one article that specifically describes the LV. In that article, the LV is described as a dangerous criminal group operating within the state of Michoacán.20 The article also indicates that the LV are preoccupied with turf wars and control over parts of the illegal drug trade in Michoacán.21 The LV operates as a branch of the larger cartel, the Neuva Familia Michoacán (LNFM). They are notorious for setting up narco-blockades to retaliate against the capture of the members.22 However, the LNFM is a regional cartel, active in parts of Guerrero and Michoacán.23 The documentary evidence is silent on the exact reach of the LV within the LNFM. [24] The RAD finds on a balance of probabilities, that the LV does not have the influence, resources and capacity to carry out operations across the country, unlike national cartels. The Appellants provided an article indicating that some Mexico cartels rely on advanced technologies and their lucrative funding to conduct their operations.24 The same article mentions four of the most active and deadly cartels which have used their influence to cover the whole nation.25 The cartels mentioned include the Gulf Cartel, Juarez Cartel, Sinaloa Cartel and the Tijuana Cartel.26 There is no mention of the LV. [25] The RAD also considered public data about the Appellants that may be freely available on the Internet. The documentary evidence indicates that the public has access through the web portal on the Ministry of Interior's website to locate biographical information such as name, date of birth and the state where they are born.27 All this information can be obtained if the person seeking this information has the other person's CURP (unique identity code number given to all citizens and residents of Mexico).28 However, the CURP does not indicate a person's address, and so a third party cannot access the home address only by knowing the CURP.29 The RAD finds that the LV would not be able to locate the Appellants' present location through this web access portal. [26] Furthermore, there is no evidence that the LV has alliances with other cartels that would allow them to locate and harm the Appellants in Mérida, 1,500 kilometres away from their region of Michoacán. According to a map of drug cartel influence in the documentary evidence, the region of Yucatán has remnants of various Gulf cartels and fragments of the Los Zetas cartel.30 There is no specific objective evidence regarding whether any of these cartels have any prominence in the city of Mérida specifically. There is also no evidence that the LV has any alliance with any of these cartels. The RAD finds on a balance of probabilities, that the LV do not have the capacity to use alliances to extend their influence in Mérida, to harm the Appellants. [27] The RAD also considered the new evidence. The Principal Appellant provided two affidavits from his brother and uncle regarding a recent encounter with the LV.31 In the brother's affidavit, he indicates that he was mistakenly kidnapped by the LV who believed he was the Principal Appellant.32 The brother also told the LV that the Principal Appellant was now in Canada.33 The LV verified his identity by calling the uncle, and then the brother was released three days later.34 [28] The RAD finds that even if the LV are still motivated to locate the Principal Appellant, two years after he and his family have left the country, the LV had just been informed by the brother that the Appellants are no longer in Mexico. The RAD finds that the LV eventually believed the brother's explanation that he was not the Principal Appellant, and that the Principal Appellant was in Canada, as the LV released the brother from their captivity. On a balance of probabilities, in light of the new evidence, the RAD finds that the LV has less motivation to continue searching for the Appellants given this information, and also given that there is no evidence that their influence extends outside the region of Michoacán. [29] The RAD does not doubt the authenticity of the affidavits, but finds that the affidavits provide little probative value on the forward-looking risk of persecution by the LV within the proposed IFA, and they are given little weight in that respect. Taking this into account, along with the fact that the LV's influence and power appear limited to the region of Michoacán, the RAD finds on a balance of probabilities, that the Appellants would be safe if they were to relocate to Mérida. It is reasonable for the Appellants to relocate to Mérida [30] The RPD found that Mérida was the most peaceful area in Mexico, with the lowest level of homicide and violence.35 The RPD further found that there was insufficient evidence that the LV had the capacity to locate and harm the Appellants in Mérida.36 The RPD found that the Principal Appellant would be able to work anywhere in Mexico.37 [31] The Appellants submit that the RPD erred by failing to consider that the Principal Appellant would have to expose himself to the public if he were to work openly in Mérida.38 Also, the Appellants submit that there is a serious possibility that they could be tracked by the cartels in Mérida. It cannot be assumed that the IFA is viable simply because of the distance or safety record alone.39 [32] The RAD disagrees with the Appellants and finds that they would not have to live in hiding in Mérida, as the RAD has already concluded that they would be safe in the proposed IFA. According to a crime and safety report in the documentary evidence, Yucatán state is amongst the safest states in Mexico with a moderate risk of crime in Mérida.40 Kidnapping for ransom remains an anomaly.41 In the report, the area of greatest concern in Yucatán is the city of Quintana Roos.42 The RAD finds that the Appellants would be able to live and work openly in the proposed IFA. [33] As indicated in the safety-prong analysis, the RAD has determined that the LV has reason to believe that the Appellants have already left the country, and it is uncertain whether they would continue to search for the Appellants in Mexico, if the Appellants were to return. [34] At the hearing, counsel for the Appellants submitted that it was possible that the LV could hire a hitman to locate the Appellants. One article was provided where a hitman confessed to killing individuals at the request of various drug cartels.43 This hitman did not name any specific cartels, although the article mentioned the names of other powerful cartels with national and international influence.44 The RAD does not find that there is sufficient evidence to demonstrate that the LV fits this profile. Once again, the RAD finds that it is speculative to believe that the LV would have the resources and capacity to hire a hitman to locate the Appellants, as the Appellants have not provided sufficient evidence to show that the LV would have this capability, outside of its region. [35] The RAD finds that Mérida is a reasonable relocation for the Appellants. The RAD concludes that the conditions in this part of the country are such that it would not be unreasonable for the Appellants to seek refuge there. The RAD finds that the RPD was therefore correct to find that Mérida would be the most peaceful area in Mexico where the Appellants would be able to reside. In summary [36] The RAD has reviewed all of the evidence in this appeal, and has listened to the entire audio recording. The RAD finds that the RPD was correct to find that Mérida is a viable IFA for the Appellants, as it is both safe and reasonable. There is very little evidence on the influence and capacity of the LV in Mexico. However, the evidence available indicates that the LV is a fragment of a larger cartel with regional influence in the Appellants' home state of Michoacán. There is no mention of the LV having any influence or alliance with any cartel outside of this region. The RAD also considered all of the evidence regarding cartels' use of technology and cyberspace to conduct its operations. The RAD finds that the cartels mentioned in these articles have national and international influence, and have the funding and the influence over Mexican authorities in order to use these tools. The RAD finds that there is insufficient evidence to demonstrate that the LV fits into this profile. Furthermore, the new evidence indicates that the Principal Appellant's brother has already informed the LV on November 8, 2019, that the Appellants are residing in Canada. The RAD finds that this evidence indicates that the LV would likely have less motivation to continue looking for them in Mexico, on a balance of probabilities. [37] The Appellants bear the burden to prove that Mérida would not be a viable IFA, and the RAD finds that the Appellants have not met that burden. [38] The RAD finds that the Appellants would not face a serious possibility of persecution if they were to relocate to Mérida; nor would they face a personalized risk to their lives, of torture, or of cruel and unusual treatment or punishment. Therefore, the RPD's decision is upheld. CONCLUSION [39] The RAD dismisses the appeal and confirms the decision of the RPD that the Appellants are neither Convention refugees nor persons in need of protection, pursuant to section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). (signed) "M. Lee" M. Lee February 4, 2020 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93, paragraph 78. 3 Exhibit P-2, Appellant Record, Affidavit of XXXX XXXX XXXX, at pages 13-14, paragraphs 7-8, 10-11-12. 4 Exhibit P-2, Appellant Record, Affidavit of XXXX XXXX XXXX XXXX, at page 14, paragraph 13. 5 Exhibit P-2, Appellant Record, Affidavit of XXXX XXXX XXXX, at pages 19-20; Affidavit of XXXX XXXX XXXX, at page 30. 6 Exhibit P-2, Appellant Record, Affidavit of XXXX XXXX XXXX, at pages 19-20. 7 Ibid. 8 Exhibit P-2, Appellant Record, Affidavit of XXXX XXXX XXXX, at page 30. 9 Exhibit P-2, Appellant Record, at pages 17-18; pages 28-29. 10 Exhibit P-2, Appellant Record, at pages 25-26; pages 31, 35. 11 Exhibit P-2, Appellant Record, at page 11. 12 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 13 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.). 14 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 15 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 7, paragraph 16. 16 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at pages 7-8, paragraph 17. 17 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 8, paragraph 18. 18 Exhibit P-2, Appellant Record, Appellants' Memorandum, at page 41, paragraph 18. 19 Exhibit P-2, Appellant Record, Appellants' Memorandum, at pages 42-44, paragraph 19. 20 Exhibit RPD-1, RPD Record, Exhibit 5, at pages 181-182. 21 Ibid. 22 Ibid. 23 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Mexico, version 30 August 2019, item 7.2, United States Congressional Research Service, Mexico: Organized Crime and Drug Trafficking Organizations, 15 August 2019, at page 28. 24 Exhibit RPD-1, RPD Record, Exhibit 5, at pages 198-200. 25 Ibid. 26 Ibid. 27 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Mexico, version 30 August 2019, item 3.6, Response to Information Request, MEX106137.E, 3 July 2018. 28 Ibid. 29 Ibid. 30 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Mexico, version 30 August 2019, item 7.21, Stratfor, Targeting Mexico's Cartels in 2019, 29 January 2019, at page 8. 31 Exhibit P-2, Appellant Record, Affidavit of XXXX XXXX XXXX, at pages 19-20; Affidavit of XXXX XXXX XXXX, at page 30. 32 Exhibit P-2, Appellant Record, Affidavit of XXXX XXXX XXXX, at pages 19-20. 33 Ibid. 34 Ibid. 35 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 8, paragraph 19. 36 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 8, paragraph 20. 37 Exhibit RPD-1, RPD Record, RPD Reasons and Decision, at page 9, paragraph 21. 38 Exhibit P-2, Appellant Record, Appellants' Memorandum, at page 45, paragraph 21. 39 Exhibit P-2, Appellant Record, Appellants' Memorandum, at page 45, paragraph 22. 40 Exhibit RPD-1, RPD Record, Exhibit 3, National Documentation Package (NDP) for Mexico, version 30 August 2019, item 7.14, Mexico 2019 Crime and Safety Report: Merida, 3 April 2019, at page 1. 41 Ibid., at page 5. 42 Ibid. 43 Exhibit RPD-1, RPD Record, Exhibit 5, at page 201. 44 Ibid. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-08949 VB9-08950 / VB9-08951 RAD.25.02 (April 04, 2019) 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 (April 04, 2019) Disponible en français