VB7-06509

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 / Dossier de la SAR : VB7-06509 / VB7-06510 / VB7-06511 VB7-06512 / VB7-06513 / VB7-06514 / VB7-06515 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision September 4, 2018 Date de la décision Panel Rena Dhir Tribunal Counsel for the person(s) who is(are) the subject of the appeal Lobat Sadrehashemi Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX XXXX XXXX XXXXXXXXXXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] Mr. XXXX XXXX XXXX XXXX (principal appellant), his spouse, XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX(brothers), and XXXX XXXX XXXX and XXXX XXXX XXXX(parents), are citizens of Mexico. They appeal the October 23, 2017 determination of the Refugee Protection Division (RPD). The claim was heard by the RPD on August 31, 2017 and September 13, 2017 with a Notice of Decision being sent to the appellants on October 25, 2017. The RPD found that the appellants are neither Convention1 refugees nor persons in need of protection pursuant to sections 96 and 97 of the Immigration and Refugee Protection Act (IRPA or the Act).2 DETERMINATION OF THE APPEAL [2] Pursuant to section 111(1)(a) of the Act, the Refugee Appeal Division (RAD) confirms the determination of the RPD, namely, that the appellants are neither Convention refugees pursuant to section 96 of the Act nor persons in need of protection pursuant to section 97 of the Act. This appeal is therefore dismissed. BACKGROUND [3] The appellants were represented before the RPD. The appellant is represented before the RAD. [4] The minister has not intervened before the RPD or the RAD. [5] A transcript of the RPD proceedings has been included in the Appellant's Record (AR).3 [6] The appellant does not seek to present "new" evidence to the RAD pursuant to section 110(4) of IRPA. BASIS OF CLAIM [7] According to the allegations set out in the appellants' Basis of Claim forms (BOC)4 and the RPD decision5 the appellants reside from XXXX, Mexico. On XXXX XXXX, 2017, the principal appellant was kidnapped and beaten. His family members' lives were threatened. Their homes and businesses were robbed and are still under surveillance. The appellants fled to different parts of Mexico, where they went into hiding. [8] The appellants lived and worked in XXXX in the state of Colima. The family operated two businesses, a XXXX XXXX and a XXXX next door, which they opened in XXXX 2016. XXXX ran a XXXX XXXX in town. [9] The principal appellant began an administrative job with XXXX XXXX around XXXX 2009. The job included tracking XXXX and XXXX. He was supervised by Mr. XXXX XXXX XXXX (Mr. XXXX), the owner and manager of company. The principal appellant began to notice that Mr. XXXX and his wife would use company accounts for personal expenses. [10] The principal appellant resigned from the company in XXXX 2014. Around XXXX 2014 Mr. XXXX called him in for a meeting regarding some information that was supposedly missing. One month was missing from accounting. The principal appellant found the missing information for him. Mr. XXXX was satisfied and left. The principal appellant heard rumours that Mr. XXXX had accused him of fraud. Mr. XXXX called the principal appellant to confront him. He came to the XXXX XXXX. Eventually Mr. XXXX told him that he believed he had stolen money from him, and used it to open the XXXX XXXX. He heard nothing more from Mr. XXXX or XXXX XXXX until 2016. [11] The principal appellant received a subpoena in XXXX 2016, accusing him and his brother XXXX of embezzlement of more than XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX). He was asked to attend a meeting at the Office of the Public Prosecutor where they provided a statement and two witnesses. They thought that the matter was resolved. [12] They received another subpoena at the beginning of XXXX 2017. It accused the principal appellant of the embezzlement of XXXX XXXX XXXX through the company account of his former classmate Mrs. XXXX. The principal appellant was summoned on XXXX XXXX, 2017 to the Office of the Public Prosecutor to respond to the charge. He was informed that the case would not go ahead and this would be communicated to the accusers. [13] On XXXX XXXX, 2017, the principal appellant was kidnapped and confronted by Mr. XXXX son. The kidnappers told the principal appellant that he had to give title papers to his family's land, businesses, homes, and vehicles. They told him to report to police that he was kidnapped by a criminal group, Cartel of XXXX. [14] Before being released a few metres from the bus station in the City of XXXX, he was beaten by the kidnappers. The principal appellant noticed the presence of vests, radios, vehicles and weapons typically associated with the judicial police during his kidnapping. [15] The principal appellant did not go to the police the same day as it was already late. However, he told his lawyer all the details. His lawyer told him he would call him the next day and they would go to the police together. That night he stayed at his parents' house. [16] The next day the principal appellant's brother XXXX drove him to their parents' XXXX. The local police commander and deputy commander were already at the XXXX XXXX, telling the principal appellant's parents they were looking for him, and that he needed to file a report. [17] The same day, the kidnappers called XXXX from the principal appellant's cell phone. The appellant answered. The person told him to bring the notarized documents to a place that he would decide. [18] The appellants fled XXXX that night, XXXX XXXX, 2017. They travelled in their Uncle XXXX XXXX XXXX vehicle XXXX XXXX XXXX as a precaution. First, they went to XXXX, then travelled to their Aunt's home in XXXX, part of the XXXX XXXX XXXX, in Jalisco. [19] They stayed in XXXX for two days with their Aunt. They tried unsuccessfully to hire a lawyer. Then they fled to XXXX, XXXX, where they hired a lawyer. [20] The appellants all travelled to Mexico City by bus. The principal appellant and his father stayed in Mexico City to file a complaint. The others continued to XXXX. [21] The principal appellant submitted their complaint to the Attorney General in Mexico City. They were told that they would receive an email after ten days advising of next steps. Then they travelled back to XXXX. They were not able to get in touch with their lawyer in XXXX. [22] On XXXX XXXX, 2017, an employee of XXXX XXXX XXXX was abducted around XXXX XXXX XXXX XXXX XXXX XXXX. XXXX had left keys with the employee to XXXX mother's house. The employee was taken to XXXX mother's house, which was looted. She was also taken to the XXXX XXXX, where everything of value was taken. Several vehicles were also taken. She was released around XXXX XXXX XXXX XXXX. The same day, XXXX mother contacted the landlords who confirmed that everything had been stolen. [23] The appellants did not hear back from police, and decided to leave Mexico on XXXX XXXX, 2017. The principal appellant, XXXX, and their parents arrived in Canada in XXXX 2017. [24] On XXXX XXXX, 2017, the principal appellant's sister-in-law's husband sent a tow truck to the XXXX XXXX XXXX to pick up their two personal vehicles. Men in a XXXX XXXX intervened, and told them to leave cars there, and there would be trouble if they came back for them. [25] The principal appellant's wife, son and brother, XXXX, remained in hiding in XXXX. The principal appellant's spouse, XXXX and XXXX, arrived in Canada on XXXX XXXX, 2017. [26] The RPD's reasons stated that the appellant's case for refugee protection was rejected because he had an internal flight alternative (IFA). GROUNDS OF APPEAL [27] The appellant's submissions as to the grounds of this appeal can be summarized as follows:6 • Did the RPD member err in the IFA analysis? REMEDY SOUGHT [28] The appellants have requested that the RAD, under section 111(1) (b) of the Act, set aside the determination of the RPD and substitute a determination that the appellants are persons in need of protection. ROLE OF THE RAD [29] When reviewing the RPD decision, the RAD is required to independently determine whether the RPD was correct in relation to each alleged error of law, fact, or mixed fact and law. The RAD may defer to the RPD's credibility assessment of the oral testimony if it finds that the RPD had a meaningful advantage in the circumstances. Reasons will be provided in the analysis if there is a finding that the RPD had a meaningful advantage. ANALYSIS OF THE MERITS OF THE APPEAL [30] The RPD member finds the appellants to be credible in their allegations surrounding what had happened to them in Mexico. However, the RPD member did not find the appellants had credibly established that the agents of harm have the ongoing motivation, and thus the capacity, in locating the appellants if they returned to Mexico and lived elsewhere. The RPD member made a determination that the appellants had an IFA in Mexico City or Veracruz, Mexico, and my analysis will deal with this issue. [31] The key concepts concerning IFA come from two cases: Rasaratnam7 and Thirunavukkarasu.8 The panel must be satisfied, on a balance of probabilities, that: (1) there is no serious possibility of the claimant [appellant] being persecuted or, on the balance of probabilities, in danger of torture, subjected to a risk to life or to cruel and unusual treatment or punishment, or a danger of torture in the IFA,9 and, (2) that conditions in that part of the country are such that it would be reasonable, in all the circumstances, including those particular to the claimant [appellant], for him to seek refuge there.10 [32] The FCA has stated that one must first determine whether an IFA exists and then determine whether the IFA is a realistic, achievable option, given the particular circumstances of the individual.11 In Rasaratnam,12 the FCA held that, with respect to the burden of proof, once the issue was raised, the onus is on the claimant [appellant] to show that he or she does not have an IFA. Furthermore, both prongs must be satisfied for a finding that the appellant has an IFA. [33] I will now turn to the specific submissions made by the appellants in their AR memorandum as to errors allegedly made by the RPD member in the IFA assessment. In reference to the first prong, the appellants submit13 that the RPD member erred by concluding that the agents of harm were no longer interested in the appellants. The appellants submit14 that the RPD member made this speculation based on the evidence that the remaining family members in Mexico were not asked about the appellants' whereabouts after they left. The appellants submit15 that the principal appellant's immediate family members have also left Mexico which includes his wife, child, two brothers, and his mother and father. [34] I have reviewed the appellants' arguments on the issue of motivation of the agents of harm in finding the appellants. The appellants argue16 that the reason the agents of harm have not asked the other family members remaining in Mexico about their whereabouts is because the immediate family has fled Mexico with the principal appellant. Another reason17 given by the appellants is that it is possible that the agents of harm may have been tipped off that the appellants have fled Mexico and that is why they are not looking for them at the present time. I find these arguments are based on mere speculations and I do not give weight to such speculations. It is clear from the evidence before the RPD and now the RAD that the associate appellant's family remains in XXXX where the incidents in question took place. The associate appellant states during her Canada Border Services Agency interview18 that her family in XXXX has not received any threats. A letter from XXXX XXXX XXXX19 refers to the XXXX XXXX and the principal appellant's parents' home being broken into where trucks, materials, and other items were taken. However, this incident happened while the appellants were in hiding in Mexico and there is no persuasive evidence that this is related to the problems associated with the appellants. The RPD member finds:20 [46] However, there is insufficient credible evidence that the claimants' family members in Mexico have been intimidated or even monitored since their departure. XXXX testified that her family members in XXXX have never been threatened. There is no mention of any threats or even suspicious visits in the letter from XXXX parents or the sister about whom the unknown men were allegedly enquiring.21 Apart from the tow truck incident, there is no mention of these visits in the principal claimant's narrative. I do not assign any probative value to the allegations in XXXX email.22 They are vague and it is a matter of speculation whether the visits are connected to the claimants or agents of harm. I note that the claimants rented the business property where their cars were parked and gave notice to their landlord that they were vacating it at the beginning of XXXX 2017. Therefore, it is possible that this incident is unrelated to the allegations at the heart of their claim. [35] I do not find that the appellants have adequately established, on a balance of probabilities, that the agents of harm they fear have the interest to locate the appellants if they were to return to Mexico and relocate to Mexico City or Veracruz. The RPD member came to this finding based on the behaviour of the agents of harm since the appellants left Mexico and the evidence that was before him. I find it reasonable to expect the agents of harm to contact the family members living in XXXX to find the whereabouts of the appellants if they had the interest to do so. However, this is not the case. Therefore, I agree with the RPD member that there is no persuasive evidence of an on-going interest or motivation to find the appellants by the agents of harm. [36] The question that the RPD member is required to address is whether the claimant [appellant], on a balance of probabilities, has a risk to his life if he returned to his home country and lived elsewhere. In this case, the RPD member made a finding on IFA and finds that the appellants do not have such a risk if they returned to Mexico and relocated to Mexico City or Veracruz. [37] The appellants also submit23 that the RPD member erred when assessing whether the agents of harm had the capacity to find the appellants. In particular, the appellants submit24 that given the RPD member accepted that personal data can be bought on the black market in Mexico, the RPD member relied more on the lack of motivation to find the appellants as a reason for dismissing the agents of harms' capability to find the appellants. [38] From my own independent assessment of the evidence before the RPD and now the RAD, I find the RPD member's assessment that the problems faced by the appellant were local in nature is substantiated by the facts in the case. First, the principal appellant testified25 that the agents of harm are associated with the local police only and not all members of the police are implicit in his kidnapping. The appellants submit that "given the documentary evidence about police corruption and the ease to which influence with local police can be bought, there is no explanation as to why the agents of harm could not buy off local police in other parts of the country in order to locate and harm the appellants". Again, I find the appellants are speculating and I do not give weight to such speculations. The RPD member finds:26 [54] Similarly, there is insufficient, credible evidence that Mr. XXXX has any significant influence with local or state law enforcement officials outside XXXX, and there is no credible evidence that he has any significant influence with federal law enforcement officials. This is material because it calls into question the claimants' allegation that Mr. XXXX is able to use government officials everywhere to achieve his aims. Firstly, if the claimants believed that the federal police in Mexico City could not be trusted, they would not plausibly have made a complaint in-person to the office of the Attorney General there, in which they divulged all the details of their case. Among the evidence that the claimants allegedly provided to the Attorney General in XXXX 2017 was a XXXX XXXX with security camera footage allegedly showing the principal claimant's kidnapping. The footage was accessed by the principal claimant's sister-in-law from the XXXX XXXX where she works, across the street from the site of the principal claimant's abduction. According to the claimants, it has not been shared with anyone else. It is reasonable to assume that this footage could be traced back to the principal claimant's sister-in-law. However, according to the claimants, no one has confronted her or asked her about it. This speaks to the claimants' implicit trust in the federal police, and suggests that XXXX is not well-connected to the offices of the Attorney General. Secondly, the claimants described how they used their contacts in the federal (transit) police to retrieve XXXX car from an impound lot in XXXX after they fled to another state. The principal claimant was abducted from this car by force. It is reasonable to assume that this car is an important piece of evidence in any investigation into the principal claimant's kidnapping, and that Mr. XXXX would not want it returning to the claimants. This speaks to how the claimants themselves appear to have more local influence with the federal police than even Mr. XXXX himself. [39] Rather, I find that the behaviour of the agents of harm is not consistent with someone who wants to pursue the appellants. The RPD member finds: I draw a negative inference from the fact that the agents of harm have not harassed or even approached the principal claimant's in-laws to try to determine his whereabouts or the whereabouts of his spouse. The principal claimant alleges that they threatened to kill him, his wife and their child. It is therefore reasonable to infer that the agents of harm are either incapable of locating the principal claimant's wife's family, despite the fact that they live in the same area of XXXX, or they have no intention of pressuring his wife's family members to achieve their goals, which given their previous alleged targeting of the principal claimant's family members, seems unlikely, unless the threat is not (or no longer) serious. The claimants have not provided sufficient credible evidence of Mr. XXXX willingness or ability to target close family members in XXXX, much less locate the principal claimant and his family members in a large city hundreds of kilometers away. [40] I agree with the RPD member. Evidence that was before the RPD and now the RAD indicates that the appellants also had influence with the police and is a clear indication that the agents of harm do not have all influence of the police as alleged by the appellants. Thus, I do not find the appellants have provided persuasive evidence that the agents of harm have the influence and capability of influencing all local or state law officials in Mexico. Most importantly, motivation is a determining factor of whether the agents of harm are still interested in the appellants. Therefore, it is reasonable to accept the agents of harm to ask the remaining family in XXXX or those who are associated with the appellants to ask about the whereabouts of the appellants. However, there is no persuasive evidence that the agents of harm have asked anyone for information on where to find the appellants. [41] Clearly, the issue of whether the agents of harm the appellants fear have an ongoing interest in the appellants that they would look for them if they relocated to another city was a determinative issue before the RPD member when assessing IFA. It is important to assess the personal circumstances of the appellants and the forward looking risk. Given the evidence before the RPD and the RAD, I do not find the appellants have provided persuasive evidence that the agents of harm have an ongoing interest in finding the appellants. Thus, based on my review of the evidence, I find that I have no reason to disagree with the RPD member's conclusion that the appellants would be able to live safely in Mexico City or Veracruz. I find the appellants have not provided persuasive evidence that the agents of harm the appellants fear have the motivation to search for the appellants in Mexico City or Veracruz. I find the RPD did consider the totality of the evidence and made clear and coherent findings related to the reasonableness prongs of the IFA, and therefore the RPD's findings were adequate. [42] Having found that there is no serious possibility of persecution or, on the balance of probabilities, of a danger of torture or risk to life or cruel and unusual treatment or punishment in the identified IFA, the issue becomes whether it would be unreasonable for the appellants to seek refuge there. Bearing in mind that, as discussed earlier, the appellants bear the onus of demonstrating, on a balance of probabilities, that the proposed IFA is unreasonable, having considered the conditions in the proposed IFAs and all the circumstances of this appeal, including those particular to the appellants, I find that it is not objectively unreasonable for the appellants to seek refuge in the proposed IFA locations. [43] In reference to the second prong for IFA, the appellants have not put forth any arguments that they could not live safely in the proposed IFA locations. I find that the appellants have not brought forward any arguments that it would be unduly harsh for them to live in Mexico City or Veracruz. I have also not found anything in my review of the evidence before the RAD that would indicate that it would be unreasonable for the appellants to live in either of these two cities. [44] In summary, having conducted an independent assessment of all the evidence, I find that I agree with the RPD that the appellants have an IFA in Mexico City or Veracruz and are therefore not Convention refugees or persons in need of protection. REMEDY [45] For all these reasons, I confirm the determination of the RPD in accordance with section 111(1) (a) of IRPA, namely, that the appellants are neither Convention refugees nor persons in need of protection. This appeal is therefore dismissed. (signed) "Rena Dhir" Rena Dhir September 4, 2018 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Immigration and Refugee Protection Act, S.C., 2001, c. 27. 3 Exhibit 2, Appellant's Record (AR), Transcript of Refugee Protection Division (RPD) Oral Hearing. 4 Exhibit 3, RPD Record. 5 Exhibit 3, RPD Record, Member's Decision. 6 Exhibit 2, AR. 7 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 FC 706 (FCA). 8 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589, 163 N.R. 232 (F.C.A.). 9 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 10 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 11 Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 FC 589, 163 N.R. 232 (F.C.A.). 12 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.). 13 Exhibit 2, AR, Memorandum. 14 Exhibit 2, AR, Memorandum. 15 Exhibit 2, AR, Memorandum. 16 Exhibit 2, AR, Memorandum. 17 Exhibit 2, AR, Memorandum. 18 Exhibit 3, RPD Record, p. 680. 19 Exhibit 3, RPD Record, p. 768. 20 Exhibit 3, RPD Record, Member's Decision. 21 Exhibit 3, RPD Record, Member's Decision, Footnote 11: Exhibit 5. 22 Exhibit 3, RPD Record, Member's Decision, Footnote 12: Exhibit 5. 23 Exhibit 2, AR, Memorandum. 24 Exhibit 2, AR, Memorandum. 25 Exhibit 2, AR, Transcript of RPD Oral Hearing, pp. 33-34. 26 Exhibit 3, RPD Record, Member's Decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB7-06509 / VB7-06510 / VB7-06511 VB7-06512 / VB7-06513 / VB7-06514 / VB7-06515