MC0-10419

RAD File No. / No de dossier de la SAR : MC0-10419 MC0-10420 / MC0-10421 / MC0-10422 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 XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, QC Appel instruit / entendu à Date of decision March 1, 2021 Date de la décision Panel Me Martine Durocher Tribunal Counsel for the persons who are the subject of the appeal Jorge J. Colasurdo 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 (the principal appellant), XXXX XXXX XXXX XXXX XXXX XXXX XXXXand XXXX XXXX XXXX XXXX (associate appellants), are from Mexico. They are appealing the decision of the Refugee Protection Division (RPD), rendered on October 28, 2020, to reject their claims for refugee protection. [2] The appellants allege that they fear the La Familia Michoacana (LFM) cartel, which allegedly threatened and brutalized them on several occasions, specifically XXXX XXXX XXXX 2015, XXXX XXXX XXXX 2017, and XXXX XXXX XXXX 2018. The members of the cartel allegedly demanded money in exchange for protecting them. [3] The Minister intervened before the RPD and raised a number of points that undermined the credibility of your allegations. He did not intervene before the Refugee Appeal Division (RAD). [4] The RPD found that the testimony was not credible. The determinative issues for the RAD are credibility and the internal flight alternative (IFA). DETERMINATION [5] I dismiss the appeal. The RPD correctly concluded that the appellants are neither Convention refugees nor persons in need of protection. ROLE OF THE REFUGEE APPEAL DIVISION [6] I will review the RPD's decision by applying the correctness standard, having conducted an independent assessment of all the evidence before me, including the recording of the hearing.1 NEW EVIDENCE The evidence presented by the appellants is rejected [7] Pursuant to the Immigration and Refugee Protection Act,2 I can accept only evidence: i. that arose after the RPD rendered its decision; ii. that was not reasonably available at the time of the decision; iii. that the person could not reasonably have been expected in the circumstances to have presented to the RPD before the decision was rendered. [8] If the evidence satisfies one or more of those requirements, I must decide, before I admit the evidence, whether it is new, credible and relevant.3 [9] For the RAD to admit additional evidence after the appellants' record is submitted, the appellants must fulfill the requirements of subrule 29(4) of the Refugee Appeal Division Rules (RAD Rules). In particular, the RAD must consider the relevance and probative value of a document, any new evidence the document brings to the appeal, and whether the person who is the subject of the appeal, with reasonable effort, could have provided the document or written submissions with the appellant's record. These criteria are cumulative. [10] On February 24, 2021, the appellants submitted three new pieces of evidence with their appeal, namely three articles from different publications: (1) [translation] "Real estate industry reveals drug trafficking in Mérida," dated March 24, 2019, in Total Sapiens magazine, (2) [translation] "Campeche moves onto the red list; homicides up by 12.28% and extortion by 76.9%," dated December 12, 2019, from the daily La Razón; (3) "As Mexico focuses on coronavirus, drug gang violence rises," dated June 18, 2020, in The Guardian. [11] I note that all these articles predate the RPD's determination on September 29, 2020, rejecting their refugee protection claims. In their submissions, the appellants fail to provide a detailed explanation of how this additional evidence meets the requirements of subsection 110(4) of the IRPA and how they contradict the RPD's findings. This breaches subparagraph 3(3)(g)(iii) of the RAD Rules. The issue of safety in the proposed IFAs was raised at the hearing; the appellants were perfectly free to ask for more time in which to submit new evidence at that stage. At the time of the hearing, the appellants were also aware of the ravages of the coronavirus, but they did not raise the matter at all. With no explanations of the dates on which the evidence was made available to the appellants, of the way in which they became aware of it, or of the reason why the evidence was not available before the rejection of the claim, it is impossible for me to determine whether the requirements of rule 29 and of subsection 110(4) of the IRPA have been met.4 As a result, the additional evidence is rejected. [12] Furthermore, while I note that the articles refer to the increase in generalized violence as a result of cartel activities in the cities designated as IFAs, the only information about the LFM cartel refers to the states of Michoacan, Guerrero and Mexico, not the cities of Mérida or Campeche. Although some factors are relevant in terms of the appellants' personal safety, they fall short of showing how they would face a serious possibility of persecution or a personal risk within the meaning of paragraph 97(1)(b) of the IRPA.5 Even if I allowed that the appellants could not reasonably have been expected to submit the articles before the RPD's decision, they would be rejected on the basis that they do not meet the test of relevance in the IFA analysis. ANALYSIS The Refugee Protection Division was impartial [13] In their memorandum, the appellants contend that the RPD adjudicated in such a way as to accommodate and accept the Minister's intervention. They argue that the RPD restricted itself to analyzing the arguments made by the Minister's representative while ignoring the substance of the claim.6 Along the same lines, they are of the opinion that, by [translation] "confirming" the arguments the Minister made in his intervention, the RPD failed in its procedural obligation of audi alteram partem. [14] From the appellants' arguments, I understand that they are stating that they have a reasonable apprehension of bias on the part of the RPD in the Minister's favour. The relevant case law tells us that the applicable test for determining whether such a reasonable apprehension exists is that of the reasonable and informed person: ...what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?7 [15] I note that, at the hearing, the member took the time needed to conduct an in-depth examination of the appellants' allegations in the detailed account in their Basis of Claim Forms (BOC Form). She also raised the inconsistencies that the Minister had identified so that the appellants could provide an explanation. For example, the member asked the appellants to address a concern that the Minister had expressed in his pleadings, namely to explain why, after the events of XXXX XXXX XXXX 2015, they moved only three kilometres away from their previous residence.8 In the decision, the RPD described the reason provided by the female appellant as unreasonable: in the RPD's opinion, it was not reasonable to expect such a move to be sufficient to protect themselves against a powerful cartel. I am therefore of the opinion that the RPD gave sufficient reasons to explain its decision. Furthermore, I note that, throughout the hearing, the tone the member used with the appellants was always respectful. [16] In the circumstances, I am satisfied that the RPD showed itself to be impartial. The appellants have therefore not met their burden of proving a reasonable apprehension of bias.9 Similarly, the appellants have failed to prove a breach of the rule of audi alteram partem. Events of XXXX XXXX XXXX 2015 [17] The RPD did not believe the principal appellant's testimony about the assault, the attempted extortion and the threats on XXXX XXXX XXXX 2015. The RPD first identified a contradiction between his testimony and the written account attached to his BOC Form, as to the assailants' membership in the LFM cartel. The RPD was of the opinion that certain conduct on the part of the appellants had undermined their credibility. This included moving not far from their previous residence, failing to ask for a transfer to a branch outside Mexico City, making no effort to file a complaint after the first incident in XXXX 2015, and the principal appellant renouncing his Dominican Republic citizenship in XXXX 2016. Finally, the RPD gave no weight to the medical certificate describing the injuries that the principal appellant allegedly suffered in the assault of XXXX 2015. [18] On appeal, the appellants are challenging those conclusions. They allege that it is very rare for victims to claim refugee protection after one single event. Contrary to the RPD's observations, they took precautions following the incident of XXXX XXXX XXXX 2015. They argue that, having moved and changed branches, the distance matters little. As they see it, they were not able to ask for state protection after the first incident, given that, at that time, they did not believe that they were being pursued by the agents of harm. This also explains why the principal appellant did not believe that his situation constituted persecution when he renounced his Dominican citizenship in 2016. They insist that they did not hear about the agents of persecution for at least two years after they relocated. As for the medical report, the appellants are of the opinion that the document only had to describe a patient's injuries, not how they were caused, the cause being established rather by the principal appellant's testimony. [19] I am of the opinion that the RPD was correct to find that the inconsistency between the appellant's written account and his testimony as to the assailants' membership in a cartel is enough to undermine the appellant's credibility. In fact, in his detailed account, he clearly stated that he had been attacked by presumed members of the LFM cartel, one of the most dangerous cartels in Mexico, and that this caused them to move to another address. I find it difficult to explain why, in his testimony, the appellant stated instead that he doubted that the individuals really belonged to the cartel in question and that the incident actually arose as the result of generalized crime, which justified merely a change of neighbourhood, not of city or state. I therefore agree that the discrepancy is in fact explained by the appellant's attempt to justify moving not far from his first residence and thereby address the Minister's concerns. I also note that it is difficult to understand why a cartel as powerful as the LFM would have taken two years to locate the appellants, who actually moved only a few blocks away from the first incident. In addition, with the first incident, the individuals allegedly warned the appellant that the assault was [translation] "just a caress" and that, if he did not pay, he would get [translation] "a bit more than a caress." In the next alleged assault in XXXX 2017, the same individuals just kicked the appellant, who was not injured. This does not correspond to the actions of a group of criminals trying to assert their authority. [20] The reasoning above similarly applies to the RPD's conclusion about the appellants making no effort to ask to be transferred to a branch in another state. [21] As for the appellant's loss of Dominican Republic nationality in 2016, the evidence, both in their BOC Forms and the testimony, shows that, at that time, the appellants had not considered leaving the country to protect themselves from the cartels. I am therefore of the opinion that the RPD erred in considering the appellant's acquisition of Mexican nationality, for family reasons that appear legitimate to me, and therefore the free and informed renunciation of his Dominican citizenship, as undermining their credibility in terms of their subsequent fear of the cartel in question. [22] As for the failure to file a complaint after the attack of XXXX XXXX XXXX 2015, the RPD described the appellant's justification as unreasonable when he explained that making such a report at that time would not have been prudent, given that [translation] "the attackers were working with the police". However, those events were much more serious for the appellant, who sustained physical injuries. Only after the second incident in XXXX 2017, at the urging of his wife, did the appellants go to try to file a complaint. The authorities allegedly refused to accept it, because a complaint cannot be made against a cartel, just against individuals, who remained unidentified. Furthermore, the appellant had sustained no physical injuries during that incident.10 [23] I note that the appellant recognized that the first incident provided more reasons to file a complaint but that [translation] "when you're going through something, it's difficult." Like the RPD, I am not satisfied by that explanation. [24] The appellants had the opportunity to report the first attack in 2015 to the public prosecutor when they visited in 2017, especially as they were alleging a link between the two incidents and could have used the medical report to prove the physical injuries. The objective documentary evidence provides us with an explanation of the procedure for filing a complaint in Mexico City: The CDHDF representative indicated that individuals can file a complaint in person, by telephone or online, and that anonymous complaints can be filed by telephone or online (Mexico City, 22 July 2019). The same source added that the call centre of the Mexico City Attorney General's office is open 24 hours a day, year-round to receive complaints by phone (Mexico City, 22 July 2019).11 [25] I also note that, if the complaint had been refused, the appellants had a remedy to challenge that situation, given that they had consulted a lawyer after their attempt to file a complaint: The CMDPDH indicates that, if the criminal complaint is refused, a complaint of denial of access to justice can be filed in person, in writing, by phone, or electronically to the National Human Rights Commission (Comisión Nacional de los Derechos Humanos, CNDH) or to any state human rights commission (CMDPDH n.d.).12 [26] Although the same documentary evidence reports that filing a complaint in person can take up to four hours, the appellants have provided no reasonable explanation as to their failure to file a complaint after the first incident, especially in the light of the documentary evidence setting out the various ways of filing a complaint. Finally, I note that the appellant justified not filing a complaint on the grounds that the individuals were working hand-in-hand with the police. That explanation is not consistent with his belief that the individuals on XXXX XXXX XXXX 2015, may not have been associated with any cartels. I agree that the failure to file a complaint undermines the appellants' credibility as to the incident in XXXX 2015. [27] As for the medical report, I agree that it can only have limited probative value, given that the circumstances leading to the injuries are not mentioned in it. [28] For all these reasons, I am therefore of the opinion that the appellants have failed to establish, on a balance of probabilities, that the appellant was the victim of an attack by alleged members of the LFM on XXXX XXXX XXXX 2015. Events of XXXX XXXX XXXX 2017 [29] The RPD did not find the principal appellant credible with regard to these allegations, because the appellants relocated only 50 kilometres from the most recent incident, to an area where the LFM cartel had great influence. They were therefore moving closer to the alleged danger. The RPD also identified inconsistencies in the testimony of the adult appellants about the reasons that prompted them to obtain a U.S. visa for their youngest child, as well as asking for a visa for Canada in XXXX 2018. The RPD criticized the appellants for not leaving Mexico at the first opportunity. [30] On appeal, the appellants contend that, after that incident, they relocated to [translation] "a small community."13 Even though the cartel in question has influence in a number of cities, it does not follow that the group has a presence in every part of a city. Furthermore, the cartel was not in the place where the appellants opened their business. Despite the two events, the appellants still held out the hope that they could continue to live in their country, by relocating a second time after the events of XXXX 2017. Their decision to leave Mexico was not yet [translation] "final," just an option.14 Having a tourist visa for their child was therefore not incompatible with their fears at that time. [31] The appellant renouncing his nationality from the Dominican Republic is not in itself a determinative factor, as the RPD explained. In the light of the evidence that the appellants had not decided to leave the country after the events of XXXX 2015, I do not agree that this has to be considered when assessing their credibility. [32] However, I am of the opinion that the appellants' arguments are contradictory. On the one hand, they assert that moving XXXX kilometres from where the appellant had allegedly received a second threat from the same individuals from the same cartel was enough to escape the [translation] "persecution." They allege that, even if the cartel was active there, it was not active in all the cities. On the other hand, they argue that there was no point in moving to the Yucatán or to Campeche where the cartel has no operations as the cartel can track them down anywhere. As the RPD points out, this conduct is not consistent with that of a person fearing persecution. It undermines the credibility of the appellants as to the event of XXXX 2017. Delay in leaving Mexico [33] The RPD identified discrepancies in the appellant's testimony about the reasons that prompted them to ask for a U.S. visa for their youngest child. The RPD noted that the appellants were afraid enough to leave their country as of XXXX 2017 and that they all had VRT-AVEs to come to Canada as of XXXX XXXX XXXX 2018. It therefore questioned why they waited until XXXX 2018, that is, after the call from a certain general in the LFM cartel, before they finally left the country. [34] In his testimony, the appellant stated that, after the event of XXXX 2017, it was not yet a [translation] "final" decision that they would leave the country; they were just considering that option. He also explained that they thought the [translation] "persecution" was over as a result of their move.15 Consequently, obtaining a tourist visa for the United States is not behaviour inconsistent with the appellants' fears at the time. The delay in leaving the country should not be considered a determinative issue in itself. The call in XXXX 2018 was the signal to the appellants that they no longer had any choice but to leave the country. [35] Unlike the RPD, I am of the opinion that obtaining a U.S. visa for the youngest appellant is not necessarily incongruous; it is actually understandable, since the other members of the family had one. On the other hand, given that the other incidents have not been established on a balance of probabilities, it is unlikely that the call in XXXX 2018 alone was enough to convince them to leave Mexico. Lawyer's letter supporting the allegations [36] The RPD declined to attribute any probative force to the letter written by a Mexican lawyer and submitted as evidence. [37] The appellants explain that the letter in question was requested by the appellants' Canadian lawyer and that it is intended as nothing more than a legal opinion from an expert in Mexican law.16 [38] I particularly note that the content of the letter dealing with the appellants' allegations of fact reflects, almost word for word, the account in their BOC Form. This therefore indicates that the lawyer in question is simply repeating what the appellants obviously sent in writing. In addition, the record contains no evidence or information to the effect that the lawyer specializes in criminal law, particularly with regard to the cartels. His allegations are vague and are not based on any concrete evidence or studies. In the circumstances, I am of the opinion that this exhibit can be given only limited probative force. [39] Consequently, I am of the opinion that the events of XXXX 2015, XXXX 2017 and XXXX 2018 have not been established on a balance of probabilities. Nevertheless, in light of a certain number of disagreements with the RPD, I am of the opinion that it is preferable, in the alternative, to conduct an IFA analysis. Internal flight alternative [40] I sent the appellants a letter asking for submissions on Mérida (Yucatán) or Campeche (Campeche) as internal flight alternatives. Counsel for the appellants replied within the one-week timeline, on XXXX XXXX XXXX 2021. [41] The appellants argue that the LFM cartel is willing and able to track them down in the cities designated as IFAs. They allege that the group can have a presence throughout the country, either by paying hitmen or by bribing public officials. They add that, by refusing to pay the money and by leaving the country, they became targets and could remain so if they returned. If they return, the group in question will carry out their threats, given that they have their reasons for attacking the claimants. They will have no difficulty finding the appellants, thanks to technology. [42] As for the second prong of the IFA, the appellants allege that they have never been to Campeche or Mérida and that none of their family members live there. They add that no one can guarantee them employment and that it would be difficult to start a business there after a long absence. They point to the economic problems linked to COVID, which has had a devastating effect on society and on the country's economy, and has increased the violence. Finally, the principal appellant states that his being Black can be an aggravating factor that contributes to persecution. [43] A review of the documentary evidence cited by the RPD reveals that the LFM cartel is generally in decline, but that it was still operational in the state of Mexico up to 2014. [44] The most recent documentary evidence confirms that the LFM cartel operates only in the states of Guerrero and Mexico, and has no control in the cities designated as IFAs: According to sources, LFM has splintered into various cells that are still operating within the Guerrero state [and in the Mexico state (US 28 July 2020)], taking part in drug trafficking, kidnapping and extorsion activities (InSight Crime 5 May 2020a; US 28 July 2020, 25). The same sources also report that a splinter group from LFM, the Knights Templar, have been driving the organization out of the Michoacán state (US 28 July 2020; InSight Crime 5 May 2020a). InSight Crime also indicates that the remnant of LFM are fending off "incursions from the CJNG and other smaller armed groups in the areas of southern Mexico where the group is still present" (InSight Crime 5 May 2020a). For further information on LFM, see MEX106302 of August 2019.17 [45] As for the allegations about vendettas, the objective evidence actually suggests that the cartels can go to considerable lengths to find people who owe them money, or to exact personal vengeance: The Assistant Professor stated that a large debt or a personal vendetta could motivate a gang to track someone outside their area, and that gangs can use "corrupt law enforcement agents" to obtain information about people they pursue (Assistant Professor 1 Aug. 2019).18 [46] The same document makes it clear that those targeted by the cartels are most often politicians, mayors or journalists. [47] The appellants display none of the characteristics that would make them targets for the cartels, which would have to expend considerable effort to find them in another state. Neither one of them is involved in politics or journalism. Nothing in the appellants' profile suggests that a cartel in decline would seek vengeance against them or be motivated to find them in the cities designated as IFAs. Acts of extortion are actually widespread in Mexico, affecting anyone who appears to have financial resources.19 It is therefore difficult to imagine that members of that declining cartel would have identified the appellants as targets to be pursued in another state, three years after the fact. [48] I am therefore of the opinion that the appellants have failed to prove, on a balance of probabilities, that they would face a serious risk of persecution or a risk as defined in paragraph 97(1)(b) of the IRPA, if they had to return to the designated IFAs in Mexico. [49] As for the second prong of the IFA, both appellants are educated and have relevant work experience in their respective fields. Furthermore, they managed to get a business up and running quickly after the second relocation. The fact that they have never been there is not relevant in this analysis. I am therefore of the opinion that it would not be unreasonable to expect the appellants to relocate in the designated cities. [50] I am therefore of the opinion that the appellants have failed to establish the events of XXXX XXXX XXXX 2015, XXXX XXXX XXXX 2017, and XXXX 2018. The appellants have also failed to establish that they would face a risk, or that they would be personally subjected to a danger of torture, or a risk to life or a risk of cruel and unusual treatment or punishment if they had to return to Mexico, or to the cities designated as IFAs, or that it would be unreasonable to expect them to relocate there. CONCLUSION [51] I dismiss the appeal and confirm the determination of the RPD that the appellants are neither Convention refugees nor persons in need of protection. (signed) Me Martine Durocher Me Martine Durocher March 1, 2021 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 2 Subsection 110(4) of the Immigration and Refugee Protection Act. 3 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza, FC 385. 4 Ilias v. Canada (Citizenship and Immigration), 2018 FC 661 (CanLII), para. 33. 5 Guerrero v. Canada (Citizenship and Immigration), 2011 FC 1210 (CanLII), para. 27. 6 Appellants' memorandum, para. 40. 7 Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25; Newfoundland Telephone Co. v Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 SCR 623. 8 Recording of the hearing, at 1:39 approx. 9 Marcelin v. Canada (Citizenship and Immigration), 2019 FC 1516. 10 Recording of the hearing, at 2:06. 11 National Documentation Package, Mexico, September 30, 2020, Tab 9.6: Procedures to initiate a criminal complaint or investigation, including whether a complaint may be registered over the phone and on the Internet, particularly in Mexico City, Nuevo León, Jalisco and Veracruz (2017-August 2019). Immigration and Refugee Board of Canada. August 16, 2019. MEX106336.E. 12 National Documentation Package, Mexico, September 30, 2020, Tab 9.6: Procedures to initiate a criminal complaint or investigation, including whether a complaint may be registered over the phone and on the Internet, particularly in Mexico City, Nuevo León, Jalisco and Veracruz (2017-August 2019). Immigration and Refugee Board of Canada. August 16, 2019. MEX106336.E. 13 Appellants' memorandum, para. 44. 14 Appellants' memorandum, para. 50. 15 Recording of the hearing, at 2:08 approx. 16 Appellants' memorandum, para. 54. 17 National Documentation Package, Mexico, September 30, 2020, Tab 7.18: Crime and criminality, including organized crime, alliances between criminal groups and their areas of control; groups targeted by cartels; state response; protection available to victims, including witness protection... Immigration and Refugee Board of Canada.September 21, 2020. MEX200313.E. 18 National Documentation Package, Mexico, September 30, 2020, Tab 7.15: ?Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltrán Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico. Immigration and Refugee Board of Canada. August 15, 2019. MEX106302.E. 19 National Documentation Package, Mexico, September 30, 2020, Tab 7.22: ?Mexico's Out-Of-Control Criminal Market. Foreign Policy at Brookings. Vanda Felbab-Brown. March 2019. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MC0-10419 MC0-10420 / MC0-10421 / MC0-10422 RAD.25.02 (January 14, 2020) Disponible en français 3 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 14, 2020) Disponible en français