TB8-09502

RAD File / Dossier de la SAR : TB8-09502 TB8-09503 TB8-09504 TB8-09505 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX(a.k.a. XXXX XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision March 18, 2019 Date de la décision Panel Pasquale Fiorino Tribunal Counsel for the person(s) who is(are) the subject of the appeal Swathi Visalakshi Sekhar Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] The principal appellant, XXXX XXXX XXXX, the co-appellant, XXXX XXXX XXXX, and the minor appellants, XXXX XXXX XXXX and XXXX XXXX XXXX XXXX, citizens of Mexico, appeal a decision of the Refugee Protection Division (RPD) which rejected their claims for refugee protection. The Appellants are submitting new evidence but are not requesting a hearing. For the reasons which follow, I find that the appellants are persons in need of protection. BACKGROUND [2] The appellants allege that the principal appellant was kidnapped and extorted money by the Los Zetas. ROLE OF THE REFUGEE APPEAL DIVISION (RAD) [3] For questions of fact, law, and mixed fact and law, I will apply the standard of correctness, as per Huruglica.1 [4] Accordingly, I will conduct its own analysis of the Record to determine if the RPD erred. NEW EVIDENCE [5] I will analyse of the admissibility of the proposed new evidence, pursuant to the test set out in subsection 110(4) and in accordance with the Federal Court of Appeal's decision in Singh.2 [6] The appellants are submitting the following documents as new evidence: (a) the updated country condition package for Mexico, dated January 26, 2018;3 (b) an article "New grisly displays...", dated December 28, 2017;4 (c) an article "Expanding Mexico Violence...", dated March 6, 2018;5 and (d) an OSAC article, dated February 15, 2018.6 [7] The RPD's decision was rendered on March 15, 2018. With the exception of item "a", all of the articles postdate the decision of the RPD. In their submissions, the appellants explain that, since the issue of an internal flight alternative (IFA) to the specific cities of La Paz and Hermosillo was raised at the hearing, they could not have been expected to produce them at that time. I accept this explanation, and I admit all of the documents as new evidence. [8] I will consider the documents in my reasons. ANALYSIS ON THE MERITS OF THE APPEAL [9] The RPD concluded that the appellants had a viable IFA to either of the cities of La Paz or Hermosillo. The identity of the agents of persecution [10] The principal appellant stated that the agents of persecution identified themselves as members of Los Zetas on two different occasions. At first, the RPD concluded that these two incidents were not sufficient to establish that the agents of persecution were in fact Los Zetas. The RPD did make an alternative analysis based on the fact that the agents of persecution were members of Los Zetas. [11] I cannot agree with the initial credibility finding of the RPD. Members of criminal organizations do now walk around with badges which identify them as members of Los Zetas. There is nothing in the evidence which would contradict the testimony of the principal appellant that the agents of persecution were Los Zetas. I conclude that the principal appellant was kidnapped and extorted money by Los Zetas. I will now analyze how this will impact the IFA finding. IFA [12] The question of whether an internal flight alternative exists is an integral part of the Convention refugee definition. It arises when an appellant who otherwise meets all the elements of the Convention refugee definition in his or her home area of the country nevertheless is not a Convention refugee because the person has an internal flight alternative elsewhere in that country. The panel must then apply the two-prong test established by Thirunavukkarasu.7 [13] The panel must be satisfied, on a balance of probabilities, that there is no serious possibility of the appellants being persecuted in the part of the country to which it finds an internal flight alternative exists. [14] Moreover, "conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all circumstances, including those particular to the claimant, for him to seek refuge there".8 [15] The appellants bear the burden of proof to show that they face a serious possibility or reasonable chance of persecution in the entire country and, specifically, in the potential IFA areas named. [16] Once the issue of an internal flight alternative is raised, the onus is on the appellant to show that the option does not exist, by establishing that either of the two Thirunavukkarasu criteria is not met. The Federal Court of Appeal in Thirunavukkarasu stated that an applicant need only show that there is a serious possibility of being persecuted in the new location. [17] In order to determine whether a viable IFA exists, the RPD must consider a two-pronged test. The basis for this two-pronged test are the cases of Rasaratnam9 and Thirunavukkarasu:10 The Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists.11 Conditions in that part of the country considered to be an IFA must be such that it would not be unreasonable, in all circumstances, including those particular to the claimant, for him or her to seek refuge there.12 [18] The RPD concluded that the appellants have a viable IFA in either La Paz or Hermosillo. [19] The RPD concluded that the appellants' fear of relocating were speculative. In their submissions, the appellants have provided new evidence with respect to gang activities in the proposed IFA. With respect to La Paz, the new evidence indicates that: ...In January, for instance, videos of an intense gun battle that lasted half an hour in the state capital La Paz were uploaded to the internet. After the event, five alleged members of a criminal group were detained in possession of an arsenal of high-powered weapons and tactical gear. The killings have been accompanied by surges in other illicit activities associated with organized crime, such as extortion. This wave of violence has tested the social fabric. In October 2017, hundreds of municipal police in La Paz threatened to walk off the job in protest of the termination of 65 officers who failed anti-corruption measures. Local civic organizations have called for the resignation of top security officials, and the state's attorney general left his post in December. A former governor labeled the worsening situation a "crisis of insecurity" following the murder of a human rights activist in November last year.13 [20] With respect to Hermosillo, the RAD notes that the OSCA article in the new evidence is dedicated exclusively to that city. The document states in part: There are many areas to avoid within Hermosillo's consular district. The U.S. Department of State updates its Travel Advisory periodically in response to the evolving security situation. Due to the high level of crime and drug-related violence in Sinaloa and parts of Sonora, any travel within these areas should be consulted against the Department's warning advisories.14 [21] I therefore conclude that the appellants have demonstrated that they would not be safe in the proposed IFA. [22] I therefore see no need to analyze the second prong of the IFA test. DECISION [23] Pursuant to paragraph 111(1)(b) of the Immigration and Refugee Protection Act (IRPA), the RAD sets aside the determination of the RPD and substitutes its determination that the appellants are persons in need of protection. The appeal is allowed. (signed) "Pasquale Fiorino" Pasquale Fiorino March 18, 2019 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 Singh, Parminder v. M.C.I. (F.C.A., no. A-512-14), Nadon, Gauthier, de Montigny, March 29, 2016, 2016 FCA 96, at para. 44. 3 Exhibit P-2, Appellants' Record, at pp. 348-400. 4 Ibid., at p. 403. 5 Ibid., at p. 407. 6 Ibid., at p. 410. 7 Thirunavukkarasu, Sathiyanathan v. M.E.I. (F.C.A., no. A-81-92), Heald, Linden, Holland, November 10, 1993. Reported: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.); (1993), 22 Imm. L.R. (2d) 241 (F.C.A.). 8 Ibid., Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589 (C.A.). 9 Rasaratnam, Sivaganthan v. M.E.I., [1992] 1 F.C. 706 (C.A.), at 710. 10 Supra footnote 7, Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589 (C.A.). 11 Supra footnote 9, Rasaratnam, Sivaganthan v. M.E.I., [1992] 1 F.C. 706 (C.A.), at 710. 12 Supra footnote 7, Thirunavukkarasu v. M.E.I., [1994] 1 F.C. 589 (C.A.). 13 Exhibit P-2, Appellants' Record, at p. 408. 14 Ibid., at p. 411. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-09502 TB8-09503 TB8-09504 TB8-09505 RAD.25.02 (September 18, 2018) 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 (September 18, 2018) Disponible en français