2024 RLLR 121

Citation: 2024 RLLR 121
Tribunal: Refugee Protection Division
Date of Decision: August 28, 2024
Panel: Jany Ondongo
Counsel for the Claimant(s): Carlos Eduardo Vera De Freites
Country: Mexico
RPD Number: TC3-30379
Associated RPD Number(s): TC3-30381, TC3-30384
ATIP Number: A-2025-00724
ATIP Pages: 1–10

REASONS FOR DECISION

INTRODUCTION

[1] These are the reasons for the decision of the Refugee Protection Division (“RPD”) in the claim of XXXX (“principal claimant”), XXXX (“associate claimant”), and their daughter XXXX (“minor claimant”), citizens of Mexico who seek refugee protection pursuant to section 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]

[2] XXXX is the designated representative for the minor claimant.

ALLEGATIONS

[3] The claimants’ allegations are fully set out in their Basis of Claim (BOC) forms.[2] To summarize, the claimants fear a risk of harm from the principal claimant’s previous boss, a XXXX in Veracruz, Mexico as well as the Jalisco New Generation Cartel (CJNG) due to the principal claimant’s disclosing of his former boss’ corruption.

DETERMINATION

[4] The panel finds, on a balance of probabilities, that the claimants face a risk to their lives or a risk of cruel and unusual treatment or punishment if they return to Mexico. The panel finds that the claimants are persons in need of protection pursuant to Section 97(1)(b) of the IRPA.

ANALYSIS

Identity

[5] The panel finds that the claimants’ personal and national identities have been established by their testimony as well as the documents provided including copies of their Mexican passports.[3]

Nexus

[6] To satisfy the definition of a “Convention refugee” found in section 96 of the IRPA, a claimant must establish that he or she has a well-founded fear of persecution by reason of race, religion, nationality, membership in a particular social group, or political opinion. The claimants did not submit they feared persecution on the basis of race, religion, nationality, political opinion or membership in a particular social group. Based on the evidence before me, I find that the claimants’ fear is based upon being victims of a personal vendetta by an influential person or being victims of crime by an organized criminal group. Therefore, I find that the claimants’ fear does not have a nexus to a Convention ground under section 96 of the IRPA. I have therefore analyzed their forward-looking risk under section 97.

Credibility

[7] Credibility is a fundamental issue in all refugee determination cases including the matter which is the subject of this determination. The starting point of any credibility assessment lies with the presumption of truthfulness; this presumption – sometimes known as the Maldonado presumption-holds that when a claimant swears certain facts to be true, they are presumed to be true unless there be reason to doubt their veracity.[4] The presumption of truthfulness may be rebutted by an accumulation of contradictions, inconsistencies, and omissions regarding crucial elements of the claim. The determination as to whether a refugee claimant’s evidence is credible is made on a balance of probabilities.

[8] During the hearing, the claimants testified in a straightforward manner that was consistent with all the other documents on file, including their Basis of Claim Forms and the principal claimant’s narrative. The adult claimants were able to answer my questions in full and provided details requested of them. There were no relevant inconsistencies or contradictions in the claimants’ testimony, nor did I find any inconsistencies or contradictions between their worked in XXXX in Veracruz from 2007 to 2022. He provided details about being assigned to his boss’ XXXX and how he discovered his boss’ corruption and filed a complaint disclosing the corruption he witnessed. He was able to provide spontaneous details regarding his complaints against his boss and meetings between his boss and members of the CJNG. Therefore, the panel accepts that the principal claimant discovered and reported his boss’ corruption while working on his XXXX.

[9] I found the principal claimant’s testimony about the retaliatory actions taken by his former boss due to his internal and external complaints to be credible. The claimant testified that his former boss went searching for him and his common-law partner (partner) when they left Veracruz for Mexico City. He also testified that his former boss and other XXXX went searching for his and the associate claimant’s whereabouts at the homes of their family members and made threats to their family. The associate claimant also testified that the principal claimant’s former boss called her from her aunt’s phone and threatened to send the CJNG after the principal claimant. I find that the submitted complaints to the Prosecutor’s Office and the Human Rights Commission from the claimants’ family members all corroborate the claimants’ testimony.

[10] In support of their claim, the claimants submitted documentary evidence including, but not limited to:

  • a XXXX course certificate for the principal claimant.

  • a certificate for XXXX issued at the XXXX for the principal claimant.

  • a certificate for XXXX issued at the XXXX for the associate claimant.

  • a unique XXXX issued by the XXXX for the associate claimant.

  • National identity cards for the adult claimants and their family members.

  • complaints to the Secretariat of Public Safety’s office from the claimants and their family members.

  • a complaint to the Human Rights Commission made by the principal claimant.

  • a complaint to the Human Rights Commission made by the associate claimant.

  • a subpoena or summons for the principal claimant from the Attorney General’s office in Veracruz.

  • a subpoena or summons for the associate claimant from the Attorney General’s office in Veracruz.

  • photos of the damage to the principal claimant’s mother’s home.

[11] I accept the submitted XXXX certificates for the adult claimants, the complaints to the Secretariat of Public Safety’s office, and the subpoenas for the claimants. Given that I have no reason to doubt the authenticity of the documents and I find them probative, I give these documents full weight with respect to establishing that the adult claimants were XXXX in Mexico, that they as well as some of their family members filed complaints against the principal claimant’s former boss to the Prosecutor’s office, and that the adult claimants filed complaints against said individual to the Human Rights Commission in Veracruz. I also find that these documents establish that the claimants’ family members were targeted by the agent of harm and other XXXX in an attempt to figure out their whereabouts.

[12] Based on the claimants’ testimony and supporting documents, I find the claimants to be credible witnesses with respect to being threatened by the principal claimant’s former boss, a XXXX in Veracruz. I also find the principal claimant to be a credible witness with respect to having witnessed his former boss’ meetings with criminal entities, specifically the CJNG. Therefore, I accept that the claimants have established, on a balance of probabilities, the central allegations of their claim, including that a XXXX with connections to the CJNG threatened them for filing complaints against him, and that he attempted to learn of their whereabouts through their family members.

Risk of Harm

[13] To be considered a person in need of protection under section 97(1)(b) of the IRPA, the claimant must demonstrate, on a balance of probabilities, that they will be subjected personally to a risk to life or a risk of cruel and unusual treatment or punishment if they return to their country. Further, this risk cannot be one generally faced by the population in the country. In this case, I am satisfied that the claimants meet this threshold and are described under section 97(1)(b) of the IRPA because the principal claimant’s former boss, a XXXX has specifically sought out the adult claimants, threatened them, and has threatened to involve the CJNG in harming them.

[14] As stated earlier, the claimants and their family members have filed official complaints before the Prosecutor’s Office and the Human Rights Commission against the principal claimant’s former boss. Additionally, the principal claimant has testified to witnessing corruption and collusion with CJNG members by his former boss and other XXXX He reported such incidents both to internal and external bodies. His reporting of these incidents led to his former boss pursuing him and his family members to ascertain his whereabouts. The claimants also mention that the associate claimant was threatened by phone call by persons purportedly from the CJNG. These events are not general in nature but brought upon by specific actions taken by the claimants, specifically, their official complaints and potential exposure of the connection between the CJNG and the principal claimant’s former boss. The principal claimant worked with his agent of harm in close proximity and was a witness to corruption firsthand. This elevates his risks to a higher degree than other individuals in Mexico and differentiates him from the general public. Given the fact that a XXXX with ties to the CJNG has specifically sought out the claimants, threatened to harm them, and continued to look for them after they relocated, I find, on a balance of probabilities that the claimants will be subjected personally to a risk to life or a risk of cruel and unusual treatment or punishment if they return to their country.

[15] While the principal claimant’s former boss is the main actor after them, his connection to the CJNG cannot be underscored. As previously stated, the claimants stated that the associate claimant was threatened by persons who claim to be associated with the CJNG. The threat was made not just to the associate claimant but mentioned the principal and minor claimants as well. The objective evidence demonstrates that the CJNG is possibly the biggest drug cartel in Mexico.[5] The same source states that the CJNG is very violent, committing violence against those it deems to have failed to comply with their demands or who represent a threat to the organization.[6] I also note that the claimants possess personal profiles that would make the CNJG more likely to pursue them. According to the objective evidence, the CJNG leadership is motivated to track and locate someone if they have valuable or sensitive information, betrayed them, or if they hold a personal animosity with them, such as previous romantic partners, leaders or high-ranking members of rival criminal groups, journalists, former government employees, or former police officers.[7] The adult claimants were both XXXX in Mexico and the principal claimant in particular has valuable information as he was a witness to his former boss’ dealings with the CJNG. Given the objective evidence that CJNG often kills those they hold animosity against and targets their family members, and the evidence that they had previously threatened the claimants as a whole, I find, on a balance of probabilities, the claimants would be personally subjected to a risk to their life or risk of cruel and unusual treatment or punishment from the CJNG if they returned to Mexico.

State Protection

[16] States must be presumed capable of protecting their citizens, except in situations where the state is in complete breakdown. To rebut this presumption, the onus is on the claimants to establish, on a balance of probabilities and through clear and convincing evidence, that their state’s protection is inadequate. I note that the more democratic a state, the harder it is to displace this presumption[8]. In the claimants’ case, given the main agent of persecution is a state actor, I find that the claimants have rebutted this presumption.

[17] The principal claimants testified that his former boss was a XXXX and is currently the XXXX His boss had used other XXXX to harass the claimants’ family members, leading their family members to relocate. Further, the objective evidence demonstrates that cartels have infiltrated Mexican law enforcement and the state apparatus. For example, according to the Global Impunity Index, Mexico ranks fourth out of sixty-nine countries with respect to impunity by law enforcement and that eighty percent of police officers claim their colleagues engage in illegal behavior.[9] The objective evidence also notes that crime groups such as the CJNG have taken advantage of long unaddressed police and political corruption in Mexico[10]. Organized crime is said to have deeply permeated police institutions and police are known to work for organized crime.[11]

[18] The objective evidence discussed above establishes that XXXX in Mexico are corrupt for the most part and often work with criminal groups in that country. This evidence also indicates that the state apparatus is often used by drug cartels, including the CJNG, to further their activities. Therefore, based on the objective evidence above, and the principal claimant’s testimony, I find that the claimants will not be able to access adequate state protection in Mexico. I am satisfied that the presumption of state protection has been rebutted in this case.

Internal Flight Alternative

[19] I have also considered whether the claimants have an internal flight alternative (IFA) in Mexico, however, I have concluded that they do not have an IFA in Mexico. The IFA test has two prongs. For the first prong, I must be satisfied that there is no serious possibility the claimants would be persecuted or that the claimants would be personally subjected, on a balance of probabilities, to a danger of torture or to a risk to life or a risk of cruel and unusual treatment or punishment in the IFA. For the second prong, I must be satisfied that the conditions in the IFA are such that it would not be unreasonable in all the circumstances, including those particular to the claimants, for them to seek refuge there.

[20] I find, on a balance of probabilities, that the agent of harm has the means to pursue the claimants. I accept that the agents of harm were able to contact and threaten the claimants. I note that the principal claimant’s former boss was able to track down his and his partner’s family members in an attempt to ascertain his whereabouts. Further, the CJNG is a large criminal organization with the resources to track its targets across Mexico. As per the objective evidence, in Mexico, if large criminal organizations or cartels have the motivation, then they have the means to locate their victims throughout Mexico.[12] The same source further states that the CJNG has the necessary resources in terms of technological capabilities to reach whoever they want, wherever they want in Mexico and if the CJNG really wanted to track someone down, they have many resources at their disposal to do so even outside of Mexico.[13]

[21] With respect to the CJNG’s motivation to pursue the claimants, as stated earlier, the adult claimants possess profiles that make them more likely to be pursued for retribution by the CJNG. They are both former XXXX in Mexico and the principal claimant is privy to sensitive information regarding the CJNG, specifically the CJNG’s collusion with his former boss, a XXXX The CJNG targets people it finds useful and with varying levels of importance, such as police, judges, lawyers, other criminal actors, and perceived informants.[14] Given the claimants’ testimony and the objective evidence, I find, on a balance of probabilities, that the claimants would be considered useful and important targets for the CJNG. With respect to the minor claimant, as previously stated, the documentary evidence demonstrates that the CJNG is violent enough to harm family members of their targets.

[22] In summary, I find, on a balance of probabilities, that the CJNG has the means and the motivation to locate and harm the claimants throughout Mexico. Therefore, I find, on a balance of probabilities, that the claimants would not be able to relocate within Mexico to a place where they would not face a risk to life at the hands of the cartel. For this reason, I find that the claimants do not have a safe internal flight alternative in Mexico and thus the IFA fails on the first prong. Therefore, there is no IFA.

CONCLUSION

[23] For the reasons above, the panel finds that the claimants are Persons in Need of Protection pursuant to s. 97(1)(b) of the IRPA.

[24] Accordingly, the panel accepts their claims.

——— REASONS CONCLUDED ———

[1] Immigration and Refugee Protection Act, S.C. 200 I, c. 27.

[2] Exhibits 2.1,2.2,2.3

[3] Exhibits 2.1,2.2,2.3

[4] Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C, 302 (C.A.); 31 N.R. 34 (F.C.A.).

[5] Exhibit 3, item 7.7

[6] Ibid.

[7] Ibid.

[8] Canada (Attorney General) v. Ward, 1993 CanLII 105 (SCC), [ 1993] 2 SCR 689.

[9] Exhibit 3, item 10.2

[10] Exhibit 3, item 7.30.

[11] Exhibit 3, item 10.2.

[12] Exhibit 3, item 7.7

[13] Ibid.

[14] Ibid.