Categories
All Countries Mexico

2020 RLLR 28

Citation: 2020 RLLR 28
Tribunal: Refugee Protection Division
Date of Decision: February 11, 2020
Panel: Jacqueline Gallant
Counsel for the Claimant(s): Fiona Begg
Country: Mexico
RPD Number: VB9-05754
Associated RPD Number(s): VB9-05768
ATIP Number: A-2021-00540
ATIP Pages: 000166-0000173


REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision of the claim of [XXX] (the “Principal Claimant”) and his spouse [XXX] (the “Associate Claimant)”, who claim to be citizens of Mexico, and are claiming refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).1

[2]       In rendering its reasons, the panel has considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.2

DETERMINATION

[3]       For the reasons that follow the panel finds that the claimants have satisfied the burden of establishing that, on a balance of probabilities, they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment upon return to their country.

ALLEGATIONS

[4]       The claimants fear they will be killed by members of the Cartel Jalisco Nueva Generacion (CJNG) if they return to Mexico.

ANALYSIS

Identity

[5]       The panel finds that the claimants’ identities as nationals of Mexico is established by their testimony and the documentary evidence filed including their Mexican passports.

Nexus

[6]       The panel finds that that there is no nexus between the claimants’ allegations and one of the five Refugee Convention grounds, and has therefore assessed these claims only under the provisions of s. 97(1) of the IRPA

Credibility

[7]       The panel finds the claimants to be credible witnesses. They testified in straightforward and forthcoming manner and there were no relevant inconsistencies in their testimony or contradictions between their testimony and the other evidence before the panel.

[8]       The panel accepts the following on a balance of probabilities:

The claimants opened a store in Guadalajara at the end of [XXX] of 2017 and members of the CJNG demanded the claimants pay them [XXX] Mexican pesos for the CJNG to provide protection to the store over the Christmas season. When the claimants did not pay this fee, [XXX] days later, the amount was increased to [XXX] Mexican pesos and the CJNG members threated the Associate Claimant telling her they knew about her daily activities and where the claimants lived.

On [XXX], 2017 three CJNG members came to the claimants’ store. Two of the men attacked the Principal Claimant and the other man stole merchandise from the store. The claimants went to the prosecutor’ s office to make a complaint but was told nothing could be done.

The claimants spent Christmas at the Principal Claimant’s family’s home in [XXX], Michoacan and when they returned home on [XXX], 2017, their home had been broken into but nothing had been stolen.

On [XXX] 2018 the members of the CJNG came to the claimants’ store, beat up the Associate Claimant and locked her in the bathroom while they robbed her store. The CJNG members told the Associate Claimant they now want [XXX] Mexican pesos and they would continue to steal merchandise until the claimants paid this amount. The CJNG members also told the Associate Claimant that if they ever made a complaint to the police again they would kill the claimants and their family. The CJNG members stole merchandise and the money from the cash register before they left.

The CJNG members continued to visit the claimants store throughout much of 2018. In [XXX] of 2018 the CJNG members came to the claimants’ store and threatened to kill the claimants and told them that this is no longer about the money but about the claimants having challenged the CJNG by not paying the money requested.

On [XXX], 2018 the Principal Claimant was dragged out of his car and badly beaten by members of the CJNG. The CJNG members told the Principal Claimant they were going to kill him and stole all of the Christmas presents that were in his car.

In [XXX] of 2019 members of the CJNG ransacked the claimants’ store and the claimants ultimately arranged to sell the business and merchandise that was left.

In [XXX] of 2019 the claimants visited the Principal Claimant’ s family in Michoacan and on [XXX], 2019 the Principal Claimant received text messages from members of the CJNG asking him if he thought this would end just because they went to Michocan. The Principal Claimant’s mother purchased the family plane tickets to travel to Canada on [XXX] 2019 to disappear for a while.

On [XXX], 2019 the Associate Claimant’s mother told them not to come back to Mexico as members of the CJNG had been to their place looking for them and told her they would be paying attention and were not finished. Members of the CJNG visited the home of the Associate Claimant’s mother again in [XXX] of 2019 looking for the claimants.

Since coming to Canada, the Associate Claimant has started receiving text messages from members of the CJNG threatening death to the claimants and including pictures of dead and tortured bodies. These threats have continued as to as recently as a month prior to the hearing of this matter.

[9]       The panel finds that the claimants’ have established a subjective fear of harm by the CJNG in Mexico.

[10]     The objective evidence of country condition in the National Documentation Package (NDP) for Mexico supports the claimants’ allegations. In 2015 the Mexican government declared the CJNG one of the most dangerous cartels in the country and one of two with the most extensive reach. In October of 2016 the US Department of Treasury names the CJNG as one of the world’s most prolific and violent drug trafficking organizations. The CJNG’s reputation for extreme and showy violence continues in 2019, including 19 bodies found on display m Michoacan, some of which were dismembered and others that were hung from overpasses.3

[11]     The panel therefore finds that the claimants have established that they would each face a personalized risk to their life or of cruel and unusual treatment or punishment that is not faced generally by others in their country.

State Protection

[12]     Except in situations where the state is in complete breakdown, states must be presumed capable of protecting their citizens. To rebut this presumption, the onus is on the claimant to establish on a balance of probabilities through clear and convincing evidence that their state’s protection is inadequate.

[13]     The claimants indicated that they did approach the police for assistance but were not provided with any assistance or protection.

[14]     Overall, the evidence regarding state protection in Mexico is mixed:

According to item 7.18 of the NDP, in addition to federal police, Mexico had 382,277 police personnel as of 2015, as well as additional soldiers engaged in law enforcement activities4. According to item 9.11 of the NDP, these officers are arresting individuals who commit crimes and such individuals are being successfully prosecuted by the court system; there are presently more than 229,915 prison inmates in Mexico, with about 60% having been convicted of a crime, and the rest in pre-trial detention pending a trial or sentence.5

The US DOS’ report at Item 2.1 of the NDP explains that “organized criminal groups were implicated in numerous killings, acting with impunity and at times in league with corrupt federal, state, local, and security officials.”6

The Victimology of Extortion report from Rice University found at item 7.16 of the National Documentation Package indicates that various levels of government in Mexico are “incapable or unwilling to protect its citizens and often collaborate with the organized crime groups to further their criminal endeavors”. The report describes the Mexican government as being “willfully blind and permissive of criminal activity” and reiterates that in many cases the state has become a “partner in crime” with several criminal organizations or cartels.7

An August 2019 Response to Information Request found at item 7.15 of the NDP indicates making a complaint to a state authority against a gang “would lead to pressure to drop the complaint and ‘almost certainly’ lead to death if the individual did not comply.”8

[15]     Upon consideration of the evidence as a whole, the panel finds that the presumption of state protection has been rebutted. Certainly, the state is not entirely ineffective and is able to provide some protection to some of its citizens. However, given the claimants’ own experiences and the country condition evidence before it, the panel finds that the state is either unable or unwilling to provide adequate protection to the claimants.

IFA

[16]     In Rasaratnam v. Canada,9 the Federal Court of Appeal held that, with respect to the burden of proof, once the issue of an internal flight alternative (IFA) was raised, the onus is on the claimant to show that she does not have an IFA. To find a viable IFA, the panel must be satisfied that (1) there is no serious possibility of the claimant being persecuted or, on the balance of probabilities, a danger of torture or subjected to a risk to life or cruel and unusual treatment or punishment in the proposed IFA and (2) that the conditions in that part of the country are such that it would be reasonable in all the circumstances, including those particular to the claimant, to seek refuge there.

[17]     The first question is whether the claimants would be safe in proposed IFA. At the outset of the hearing the panel identified that IFA was in issue and proposed the IFA locations of Campeche City and Mérida.

[18]     When the claimants were asked if they could live in either of the proposed IFA locations they said they do not believe they can be safe anywhere in Mexico as the entire country is controlled by cartels. When asked specifically about whether members of the CJNG could find them in Campeche City or Mérida the Principal Claimant said the CJNG can find anyone within the republic of Mexico and that the cartel may track them through their relatives. When asked about how the CJNG would be able to find them in the IFA locations, the Principal Claimant said that that the CJNG was able to find them in Michoacan and even in Canada. When asked for details regarding the motivation of the CJNG to find them, the claimants both said that this is no longer just about money and that the CJNG believes that the claimants have mocked them and made a fool of them by not paying them the money they demanded and being able to escape without being harmed.

[19]     The panel finds that the claimants have provided sufficient evidence to establish that the agents of harm in their case would have the means and motivation to find them in Campeche City or Mérida. In coming to a decision, the panel has considered the CJNG’s size, its area of operation, and its level of interest in the claimants.

[20]     The CJNG is not present in Campeche City or Mérida, as indicated in the 2019 Stratfor Global Intelligence map in the NDP,10 however the NDP describes that a group such as the CJNG could leverage corrupt officials in another location or utilize “strategic alliances” with other groups to locate someone if sufficient interest exists.11 According to the NDP, it is possible for cartels to track people outside of their areas of operation; the common motivation to do so being something the magnitude of “a large debt or a personal vendetta”.12

[21]     Campeche City and Mérida are both over [XXX] km and about a [XXX]-hour drive from where the claimants lived in Guadalajara. However, the agents of harm have shown they were able to track the claimants to the home of the Principal Claimant’s mother in Michoacan, and have even managed to locate them in Canada to continue the threats. The panel finds that the CJNG’s persistent interest in the claimants, including the very recent threats received in Canada, support an ongoing vendetta by the CJNG that would reach the magnitude necessary for the CJNG to have sufficient interest in using their ability to track the claimants outside of their area of operation.

[22]     On the evidence before it, the panel finds on a balance of probabilities the claimants are at risk to life or cruel and unusual punishment throughout Mexico and that the claimants therefore have no viable IFA.

CONCLUSION

[23]     The panel finds that the claimants have satisfied the burden of establishing on a balance of probabilities, they would personally be subjected to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture upon return to their country. The panel therefore accepts their claims.

(signed)           Jacqueline Gallant

February 11, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2 Immigration and Refugee Board of Canada (IRB) Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, November 13, 1996.
3 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.2: Mexico: Organized Crime and
Drug Trafficking Organizations, United States Congressional Research Service, 15 August 2019.
4 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.18: Criminality, including organized crime; state response, including effectiveness; protection available to victims, including witness protection (2015 – July 2017), Immigration and Refugee Board of Canada, 21 August 2017. MEX105951.E.
5 Exhibit 3; National Documentation Package, Mexico, 30 August 2019, tab 9.11: Criminal Procedure Reform in Mexico, 2008-2016. The Final Countdown for Implementation. University of San Diego. Justice in Mexico Project. Octavio Rodriguez Ferreira; David A. Shirk. October 2015.
6 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 2.1: Mexico. Country Reports on Human Rights Practices for 2018, United States. Department of State, 13 March 2019.
7 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.16: The Victimology of Extortions in Mexico, Rice University. James A. Baker III Institute for Public Policy, October 2016.
8 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.15: Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltran Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017 – August 2019), Immigration and Refugee Board of Canada, 15 August 2019. MEXI06302.E.
9 Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.).
10 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.2: Mexico: Organized Crime and Drug Trafficking Organizations, United States Congressional Research Service, 15 August 2019.
11 Exhibit 3; National Documentation Package, Mexico, 30 August 2019; Item 7.15: Drug cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltran Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico (2017 – August 2019), Immigration and Refugee Board of Canada, 15 August 2019. MEX106302.E.
12 Exhibit 3, National Documentation Package, Mexico, 30 August 2019, Item 7.15: Drug Cartels, including Los Zetas, the Gulf Cartel (Cartel del Golfo), La Familia Michoacana, and the Beltran Leyva Organization (BLO); activities and areas of operation; ability to track individuals within Mexico; Immigration and Refugee Board of Canada. 15 August 2019. MEX106302.E.

Categories
All Countries Mexico

2020 RLLR 26

Citation: 2020 RLLR 26
Tribunal: Refugee Protection Division
Date of Decision: March 12, 2020
Panel: R. Bebbington
Counsel for the Claimant(s): Hannah Lindy
Country: Mexico
RPD Number: TB9-14699
Associated RPD Number(s): TB9-14767
ATIP Number: A-2021-00540
ATIP Pages: 000151-0000156


REASONS FOR DECISION

INTRODUCTION

[1]       These are the reasons for the decision in the claims of [XXX], [XXX], who claim to be citizens of Mexico, and are claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act.1

[2]       In rendering my reasons, I have considered and applied the Chairperson’s Guidelines on Women Refugee Claimants Fearing Gender-Related Persecution.2

ALLEGATIONS

[3]       The female claimant alleges that her ex-partner is a member of the Los Zetas cartel in Mexico and she is a victim of domestic abuse. Should she return to Mexico she alleges her life is at risk. The complete allegations are set out in the Basis of Claim (BOC) Form,3 as well as the BOC amendments.4

DETERMINATION

[4]       I find, on a balance of probabilities, that you would be subjected personally to a risk to your lives or to a risk of cruel and unusual treatment or punishment, should you return to Mexico, for the following reasons.

ANALYSIS

[5]       The determinative issue(s) in this case are credibility, state protection, internal flight alternative.

Identity

[6]       I find that your identity as nationals of Mexico is established by your testimony and the supporting documentation filed including your passports.

Credibility

[7]       Unless specifically noted in the analysis below, I accept your evidence about your allegations of domestic abuse and the events associated with it that you encountered in Mexico as being generally credible.

[8]       The Refugee Protection Division (RPD) Rules require claimants to provide acceptable documents establishing their identity and other elements of the claim. I have drawn a negative inference to the credibility of your allegation that the Agent of Persecution (AOP) is a Los Zetas cartel member. You have not provided sufficient persuasive evidence that would reasonably be expected to identify this individual, nor a reasonable explanation why you were not able to obtain them.

[9]       You were questioned about providing documentary proof of the identity of [XXX], the alleged agent of persecution (AOP). The panel acknowledges that the AOP’s name appears on the copy of the birth certificates for your children, but I find beyond this you have provided little support to establish his identity or his identity as a member of the Los Zetas cartel.

[10]     You have provided a series of medical reports from [XXX] 2013,5 as well as a series of 2011 police witness statements from neighbours that state that they have witnessed bruising on the claimant.6 The witnesses describe the claimant’s partner ([XXX]) as an aggressive and threatening individual, much like his father and friends he associates with. The same documents contain another statement from a neighbour that describes the claimant’s partner as a drunk and aggressive. You have also provided a copy of a lawyer’s letter dated in 2011, that describes a statement from the claimant about the AOP and the abuse she has experienced. The letter states the claimant identified that her partner belonged to the “Zetas” cartel. I would note that this statement is simply based on self-reporting from the claimant.

[11]     The Panel finds upon review of all of the evidence, on balance there is insufficient persuasive evidence to confirm the alleged AOP is a member of a cartel and anything more than a local thug who has abused you. I find this lack of evidence to be unreasonable because of your long-term relationship with this individual, as well as your alleged long term and continued contact with his family members. In addition, your statements at the hearing and in your amended BOC narrative confirmed that all of your neighbours and a number of your friends and relatives have interacted with this individual. Yet, when questioned about obtaining additional affidavits from any of those individuals you testified that you had not considered it. I find on a balance of probabilities that you have not provided evidence to confirm the identity of the AOP as a member of the Los Zetas cartel and that your problems are limited and local to your home area of Oaxaca.

Contact With the AOP

[12]     You have alleged that you continue to receive threatening messages from the AOP. When you were asked to explain how and when you received these messages you stated they came in the form of Facebook messages. I note that you have provided copies of photographs of messages from your telephone or tablet.7 Upon examining these messages, the panel notes the name of the individuals on the text is not that of the AOP. I further note that there is no way to ascertain the contact information or identity of the individual who sent the messages. The claimant described that the AOP was using an alias, the panel is unable to assess whether that is true or not. The panel places little evidentiary weight on the copies of photographs of the text messages submitted in evidence. Therefore, I draw a negative inference concerning your credibility by reason of your failure to adduce corroborating documentary evidence as to the association ofyour partner with the Los Zetas cartel and ongoing threats from the AOP.

[13]     You allege that the AOP has been able to locate you on numerous occasions in Mexico. Your testimony and statements confirm that you have maintained social media profiles where you have received messages and threats from the AOP. You have confirmed in your evidence that you have corresponded with the AOP when receiving these messages. You have further confirmed in your evidence that you have maintained contact with the sister and mother of the AOP, yet you state they are not interested in assisting you. I find it reasonable to believe that these interactions could provide the AOP with details as to your location.

Internal flight alternative

[14]     I have considered whether a viable internal flight alternative (IFA), exists for you and the male claimant.

[15]     I acknowledge that the complicating concern in this situation is that you have children with the AOP and at this time the AOP has taken custody of the children. In your BOC narrative, as well as your testimony you confirm that should you return to Mexico you will continue to make efforts to contact your children and seek some form of custodial relationship.

[16]     The female claimant testified that in the past the AOP has threatened to kill her or the children if she starts custody proceedings against him. The panel acknowledges Counsel’ s submission that if the female claimant initiates legal proceedings in Mexico, she would have to face the AOP, and he would be able to easily locate her.

[17]     The Federal Court has found that the Board cannot find an IFA is available or reasonable where a condition of its viability is that the claimant does not try to get custody of her children. The Court in Calderon8 found it would be “unduly harsh and unreasonable to expect the [claimant] to foreswear any efforts or attempts to re-secure custody of her young children.” That particular case involved a similarly situated claimant from Mexico.

[18]     I find in considering the fact that you will and should pursue custody of your children that there are no other parts of the country, where you would not face a risk to your life or a risk of cruel and unusual treatment or punishment. Hence the concept of a viable IFA will not stand.

State Protection

[19]     The objective documentary evidence states:

The Bertelsmann Stiftung mentions in its 2016 Mexico Country Report that there are “thousands of unresolved crimes of violence against women in many regions….” In its world report covering the year 2015, Freedom House notes that perpetrators of domestic violence “are rarely punished.” The report continues to state: “Implementation of a 2007 law designed to protect women from such crimes remains halting, particularly at the state level, and impunity is the norm for the killers of hundreds of women each year.”9

[20]     The panel finds that the documentary evidence supports a finding that state protection in respect of gender-based violence in Mexico can be described as limited at best. The literature describes efforts to address a long-standing culture of acceptance of domestic abuse, but despite strong existing legislation protecting women’s rights and preventing violence against women, enforcement varies widely and largely depends on social norms, pointing to potential gaps between the de jure laws and the de facto practices.10

[21]     The panel finds that in the particular circumstances of this claim that adequate state protection would not be reasonably forthcoming.

CONCLUSION

[22]     Based on the analysis above, I conclude that you are persons in need of protection. Accordingly, I accept your claims.

(signed)           R. Bebbington

March 12, 2020

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 as amended, sections 96 and 97(1).
2 Chairperson’s Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guideline Issued by the Chairperson Pursuant to Section 65(3) of the Immigration Act, IRB, Ottawa, November 25, 1996, as continued in effect by the Chairperson on June 28, 2002, under the authority found in section 159(1)(h) of the Immigration and Refugee Protection Act.
3 Exhibit 3, Basis of Claim (BOC) Form, TB9-14699, received June 6, 2019.
4 Exhibit 5, BOC Amendments, received February 2, 2020; Exhibit 8, BOC Amendments, received February 3, 2020.
5 Exhibit 6, Claimant’s Personal Disclosure, received January 27, 2020, at pp. 25-31.
6 Ibid., at pp. 16-24.
7 Ibid., at pp. 32-46.
8 Calderon, Sonia Blancas v. M.C.I. (F.C., no. IMM-5367-08), Near, March 8, 2010, 2010 FC 263, para. 17.
9 Exhibit 3, National Documentation Package (NDP) for Mexico (August 30, 2019), Item 5.3, s. 3.
10 Ibid., Item 5.11, s. Protecting Women from Violence.

Categories
All Countries Mexico

2019 RLLR 142

Citation: 2019 RLLR 142
Tribunal: Refugee Protection Division
Date of Decision: December 13, 2019
Panel: D. D’Intino 
Counsel for the Claimant(s): Gabriella B Uteras Sandoval
Country: Mexico
RPD Number: TB9-00090
ATIP Number: A-2021-00256
ATIP Pages: 0000133-000139


DECISION

[1]       MEMBER: Alright so just let me get started here. Okay so this is my decision with respect to the claim of [XXX] File number TB9-00090. I just want to alert you sir that you are going to get a written copy of these reasons and as will your counsel and there may be some changes with respect to grammar, syntax and additional references to documentary evidence.

[2]       The claimant is a citizen of Mexico and claims refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.

[3]       I have considered the chair person’s Guideline 9 in this claim which relates to sexual orientation, gender identity and expression. I am required to consider these guidelines and I find them helpful.

[4]       I have considered your testimony sir and the country documentation for Mexico and the documentation you have provided and this is my decision.

DETERMINATION:

[5]       I find that the claimant is a Convention refugee on the grounds of membership in particular social group gay men. As I have made a positive determination on this ground I need not go on to analyze your claim under Section 97.

ALLEGATIONS:

[6]       Your allegations are fully set out in your basis of claim form which is Exhibit 2, in summary you have testified that you fear persecution in Mexico because of your sexual orientation and as well your HIV positive status.

[7]       You further allege that there is no adequate state protection for you in Mexico nor is there an internal flight alternative that is both safe and reasonable for you because the persecution you fear exists throughout all OF Mexico.

IDENTITY:

[8]       Your personal identity as a citizen of Mexico is established on a balance of probabilities by your testimony and by your Mexican passport which is Exhibit 1.

NEXUS:

[9]       The claimant has a number of potential nexus’s to the convention, for example as I mentioned as a gay man or as a gay man who has HIV positive status. I will accept you claim simply on the basis of your sexual orientation.

[10]     Under Section 96 the test is whether there is a serious possibility of persecution on this ground should you return to Mexico and I find that you have met this test.

CREDIBILITY:

[11]     You affirm to tell the truth in your testimony today; you confirmed that you likewise affirmed to tell the truth when you completed your basis of claim form. When a witness swears or affirms to tell the truth this creates a presumption of truthfulness unless there is evidence to the contrary.

[12]     I find that you were a credible witness. Your evidence was consistent, logical, clear and supported by highly probative documentary evidence. The evidence you gave me today and what you wrote in your narrative can be very briefly summarized as follows.

[13]     You were born and raised in Agua Linda Puebla Mexico. That growing up you were verbally assaulted and discriminated against because of choice of dress or the way you spoke which other people determined to be feminine.

[14]     You realized that you were gay from a young age and had your first relationship with a same sex partner around the age of twelve. When you moved away from home and got a job with [XXX] you were told by your boss that he did not want you to be hired because he did not want gay people working there.

[15]     On a number of occasions you were physically and verbally assaulted because of your sexual orientation. You told me about one robbery in particular where your wallet and your phone were taken and the thieves told you they had been following you and your partner and the demanded your pin, they indicated that they knew where you lived and where you worked and that they were watching you.

[16]     You came to Canada in [XXX] 2018 and subsequently claimed refugee protection. When you told your parents about your sexual orientation they had a difficult time accepting it and have still not fully accepted it as they hold out hope that you will one day have a family with a woman.

[17]     While in Canada you were diagnosed with HIV. You are currently in receipt of medical treatment and counselling. You do not believe you can return to Mexico and live openly and safely anywhere in the country as a gay man who is HIV positive.

[18]     You fear that you will not have access to your medication without which it would lead to the development of the AIDS virus and place your very life at risk.

[19]     So that is a very condensed version of your testimony and your narrative.

OBJECTIVE DOCUMENTARY EVIDENCE:

[20]     Conservative attitudes prevail in Mexico and public displays of affection between same sex partners are not considered socially acceptable and that is reflected in Item 6.2 of the NDP and Item 6.1.

[21]     Furthermore in Item 6.1 and I quote from the US Department of State report for 2017 “discrimination based on sexual orientation and gender identity was prevalent despite a gradual increase in public tolerance of LGBTQ individuals according to public opinion surveys”.

[22]     In one report information was published according to which one thousand three hundred and ten cases of killings of LGBTQ person’s motivated by homophobia were committed in Mexico between 1995 and April 30th 2016. Forty four of those killings occurred in 2015 and fifteen in the first portion of 2016.

[23]     In the last ten years in Mexico there has been an average of seventy one homicides a year of LGBTQ persons. The UN special repertoire on extra judicial or arbitrary executions noted “an alarming pattern of grotesque homicides of LGBTQ individuals and broad impunity for these crimes sometimes with a suspected complicity of investigative authorities”.

[24]     For example between January 2014 and December 2016 two hundred and two persons, sexual minorities were killed as a result of their sexual orientation or gender identity including a hundred and eight trans women, ninety three gay men and one lesbian woman.

[25]     The highest number of victims seventy six was recorded in 2016. Of the total two hundred and two victims thirty three of them showed signs of torture while fifteen showed signs of sexual violence. That is from Item 6.4 of the NDP.

[26]     From Items 6.2 I take the following two examples. On the 6th of May 2019 a group of six armed men attacked and robbed a shelter where eleven LGBTQ asylum seekers were staying setting the door of the shelter on fire.

[27]     The shelter’s legal representative informed Amnesty International that the men returned a few hours later shouting homophobic slurs and threatened to kill them if they did not leave the neighborhood.

[28]     According to the 2018 national study on discrimination against sexual and gender minorities in Mexico 41.8 percent of the respondents indicated that they did not believe that adequate public healthcare services were available for sexual minorities and 31.1 percent don’t even know if those services exist. The absence of adequate health services for sexual minorities is a noted problem in Mexico.

[29]     Furthermore in February 2019 the Federal Government noted, announced that it would no longer fund civil society organizations for activities such as outreach or HIV testing. Mexico city has the highest number of documented HIV cases in all of Mexico, despite these high infection rates medical treatment for HIV and AIDS is largely unavailable in less urban areas due to cost.

[30]     Even in areas that have free anti retro viral drugs they are usually reserved only for the sickest people. Many in Mexican society hold misconceptions about the LGBT community and HIV that further contribute to the widespread stigma associated with both HIV and LGBTQ persons.

[31]     A national survey of Mexicans found that fifty nine percent believe that HIV/AIDS is caused by homosexuality. These misconceptions and stigmas exist even among medical providers in Mexico. In fact most hospitals view homosexuality as a risk factor for HIV and often discriminate against those who seek treatment.

[32]     The Commission on Human Rights in Mexico City also reported that HIV and AIDS clinics often actively mistreat and discriminate against LGBTQ persons living with HIV or AIDS. That is from Item 6.3 of the NDP.

[33]     Claimant’s Exhibit 5 contains letters from family and friends as well as medical documentation which confirm all of the core allegations underpinning the claimant’s claim, including his sexual orientation and HIV positive status.

[34]     Relying on those items I find that there is a strong objective basis for the fear you have of being persecuted in Mexico. I also found that you subjectively fear persecution, outright violence or death in Mexico on the basis of your sexual orientation and your HIV status. Therefore I find that your fear is well founded.

STATE PROTECTION:

[35]     States are presumed to be capable of protecting their citizens but this presumption is rebuttable with clear and convincing evidence.  The NDP for Mexico quoting a number of nongovernmental organizations indicate that there are high levels of distrust in the authorities and that rights for gay people are still treated as exceptions to be granted at the discretion of local officials.

[36]     According to the US country reports for 2016, civil society groups claimed police routinely subjected LGBTQ persons to mistreatment while in custody.

[37]     According to several sources the judicial system is not effective in investigating crimes committed against sexual minorities.

[38]     Furthermore there is evidence that state actors have been and continue to be involved in forced disappearances and extra judicial killings adding to the reasons why LGBTQ persons would fear approaching the state for protection and the reference for that, references Item 2.1of the NDP at Page 4.

[39]     Another example from the NDP on August 5th of 2017 an eighteen year old man was beaten to death by a group of ten taxi drivers who worked at a taxi stand outside a gay bar in San Luis Potosi. Local human rights defenders claim the killing was a hate crime because the victim was attacked due to his sexual orientation.

[40]     The President of the San Luis Potosi state commission for human rights agreed with that. Advocates also argued negligence in investigating the case due to homophobia in the police. As of October 2017 no one had been arrested in connection with the killing. That is from Item 2.1.

[41]     From Item 6.1 according to an organization called Collectivo Leange(ph). Officials from the public ministry often mistreat LGBTQ persons and refuse to open investigations for crimes against them.

[42]     Furthermore despite the training provided to judicial authorities on sexual diversity there is still a lot of intimidation and threats against the LGBTQ population due to what they perceive as faults against morals which are then used to extort members of the LGBTQ community.

[43]     This is but a small sample of the documentation in the NDP and in the claimant’s country conditions documentation which support my conclusion that Mexico is unable or unwilling to provide protection to individuals like this claimant.

[44]     I found all, sorry I found the claimant to be credible. I find that the objective evidence supports the claimant’s evidence and that it demonstrates on a balance of probabilities adequate state protection for you in Mexico would not be reasonably forthcoming.

INTERNAL FLIGHT ALTERANTIVE:

[45]     I purpose Mexico City as an internal flight alternative outside of Puebla that I believed would be safe and reasonable in the claimant’s circumstances. For the following reasons I find that the claimant would face a serious possibility of persecution on the grounds of his sexual orientation in Mexico City and therefore the internal flight alternative location fails the first prong of the analysis.

[46]     The first prong of the analysis asks whether there is a serious possibility of persecution or a Section 97 risk on a balance of probabilities in Mexico City.

[47]     Item 6.4 of the NDP which is a response to information request on Mexico City depicts Mexico City as the most progressive area in Mexico concerning LGBTQ rights. For example there was a first district in Mexico to allow legal same sex marriage and to allow a person to change their gender identity.

[48]     One source that is quoted in this item talks about gay friendly zones or zones where the LGBTQ community feel safe from being abused. However they note that there are police officers that look for anyway to intimidate or extort same sex couples wherever they are.

[49]     The UN special repertoire on extra judicial or arbitrary executions notes that there remains broad impunity for crimes against the LGBTQ community.

[50]     According to a report by the transgender law society and Cornell University Law School, LGBTQ clinic, police harassment against the LGBTQ community remains high in Mexico City.

[51]     A 2016 report indicates that out of four hundred and twenty five person’s interviewed, one hundred and thirty nine reported some form of abuse by authorities including delays in or refusal to provide services, violence and insults. That comes from Item 6.4.

[52]     Claimant’s Exhibit 5 at Tab 22 contains articles which describe a shortage of HIV/AIDS drugs which has not yet been resolved in Mexico placing the lives of thousands of people at risk.

[53]     Again these are but a few examples of the violence and persecution that gay people face on a daily basis and Mexico City does not appear to be as safe as it is socially liberal for the LGBTQ community.

[54]     Ultimately I find that the preponderance of evidence weighs in favor of finding that the claimant would face a serious possibility of persecution on a convention ground in Mexico City and throughout Mexico. Therefore I find that Mexico City is not a viable internal flight alternative for the claimant.

CONCLUSION:

[55]     I have considered your testimony, the documentary evidence and the country conditions documentation and I find that there is a serious possibility of persecution by Mexican society generally on the basis of your sexual orientation and your HIV positive status should you return to Mexico.

[56]     I therefore find you to be a Convention refugee under Section 96 and I accept your claim for protection.

[57]     That is my decision thank you very much. Thank you so it is 11:56 I have delivered my decision we will go off record thank you everyone.

———- REASONS CONCLUDED ———-

Categories
All Countries Mexico

2019 RLLR 39

Citation: 2019 RLLR 39
Tribunal: Refugee Protection Division
Date of Decision: November 14, 2019
Panel: Kari Schroeder
Country: Mexico 
RPD Number: VB9-01375
ATIP Number: A-2021-01124
ATIP Pages: 000226-000230


— DECISION

[1]       PRESIDING MEMBER: This is the decision of the Refugee Protection Division in the claim of [XXX] as a citizen of Mexico who is claiming refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       In rendering my decision, I have applied the Chairperson’s Guidelines on sexual orientation and gender identity.

ALLEGATIONS

[3]       The following is a brief synopsis of the allegations put forward by the claimant:

[4]       The claimant fears returning to Mexico due to her sexual orientation as a bisexual woman. The claimant had her first homosexual relationship after high school. The two women were caught one day by a teacher and the claimant was refused entrance to the school for the following school year. The claimant and her girlfriend were also attacked on the street, and her girlfriend’s car was destroyed. On one occasion, they were threatened at gunpoint. The claimant went to the police but nothing was done.

[5]       In 2013, the claimant moved to Playa del Carmen for a work opportunity. The claimant was approached and threatened by a group of men who had seen her holding hands with another woman. On another occasion, a group of men threw stones at her house. The claimant moved several times to avoid the threats. Her car was also damaged in an attack, and in 2018 her house was broken into with all of her belongings destroyed. The intruders left a threatening note stating that she was going to die.

[6]       The claimant entered Canada on [XXX], 2018 and claimed refugee protection in February of 2019.

DETERMINATION

[7]       I find that the claimant is a Convention refugee pursuant to s. 96 of the Act for the reasons that follow:

ANALYSIS

[8]       The claimant’s identity today has been established through her sworn testimony as well as a certified copy of her passport on file.

[9]       In terms of credibility, when assessing credibility there is a presumption that claimants are telling the truth unless there is a reason to doubt the claimant’s allegations. In this case I have no reason to doubt the truthfulness of the claimant’s story. She testified in a straightforward manner with no embellishments and there were no inconsistencies between her testimony and her basis of claim form.

[10]     The claimant testified that she felt she was different starting in high school. Once she finished high school, she began studying translation and met a girl named [XXX]. [XXX] was openly a lesbian and helped the claimant accept her own sexuality. The relationship evolved and eventually, became physical. The claimant described [XXX] as intelligent and confident and that she was physically attracted to her. The relationship lasted four years, and at first, only the claimant’s best friend knew. The claimant described how she cried when she first opened up to her friend.

[11]     The claimant testified that two days after a teacher discovered her and [XXX] kissing in a classroom, that she was not allowed to go back to the school. She testified that if she and [XXX] ever held hands or displayed any affection in public, people on the street would give them nasty looks. The relationship eventually ended after a violent attack in 2006 which made them both afraid to go out together. The claimant described details of the attack and what was said to the two women. The claimant went to the police and when she told them why she had been attacked, the police told her that there was no case.

[12]     The claimant has had four relationships during her five years in Playa del Carmen, three with women and one with a man. She experienced several threats during that time period, even though she tried to keep those relationships with women discreet. The claimant self-identifies as bisexual. She testified that she is not currently in a relationship in Canada. She also testified that her family in Mexico does not know that she is bisexual and that they believe she is just working in Canada. She testified that when she tried to tell her mother on one occasion, her mother told her that she would rather the claimant be a drug addict than be attracted to women.

[13]     After hearing the claimant’s testimony, I believe her allegations and accept that she has a subjective fear of returning to Mexico due to her sexual orientation as a bisexual woman. Further, although she did visit Canada in 2017, I find that her failure to claim refugee protection at that time does not detract from her subjective fear. She testified that it was the attack and threatening note left in her home in 2018 that prompted her to leave the country, as at that point she was not even safe in her own home. I accept this explanation as reasonable.

[14]     I find there is a nexus in this case to the Convention ground of membership in a particular social group; namely, sexual orientation. Having accepted the claimant’s allegations as credible, I turn to the objective evidence before me.

[15]     According to the US Department of State Report on Human Rights, which is document 2.1 of the National Documentation Package, a Mexico City municipal law provides increased penalties for hate crimes based on sexual orientation and gender identity. However, civil society groups claimed that police routinely subjected LGBT persons to mistreatment while in custody. Discrimination based on sexual orientation and gender identity was prevalent despite the new laws and despite a gradual increase in public tolerance of LGBT individuals. There were reports that the government did not always investigate and punish those complicit in abuses, especially outside Mexico City.

[16]     For example, on August 5th of last year, and 18-year-old man was beaten to death allegedly by a group of 10 taxi drivers outside of a gay bar. Local human rights defenders claim the killing was a hate crime because the victim was attacked due to his sexual orientation. Advocates have also argued negligence in investigating the case, due to homophobia in police ranks.

[17]     According to an Immigration and Refugee Board response to information request, this is document 6.2, the vague terminology in the laws such as, “abnormal sexual life”, makes LGBT people vulnerable to the interpretation of these laws by local authorities. The concept of machismo is still embedded in Mexican culture which increases homophobia and discrimination against sexual minorities.

[18]     With respect to the situation in Yucatan, where the claimant previously lived, this report states that,

“More LGBT individuals were killed in 2017 and 2018 than in previous years for reasons believed to be due to their real or perceived sexual or gender identity.”

[19]     And with respect to the situation in Mexico City, a response to information report at document 6.4, states that there are,

“gay-friendly zones where the LGBT community feels more safe from being abused. Although, there are police officers that look for any way to intimidate or extort couples wherever they are.”

[20]     In a 2015 report on the situation of human rights in Mexico, the Inter-American Commission for Human Rights reports that it does not know of any — sorry, that notes there have been some improvements in Mexico City in terms of discrimination against LGBT persons, unlike other parts of the country.

[21]     However, this same document goes on to state,

“An alarming pattern of homicides of lesbian, gay, bisexual and transgender individuals and the broad impunity for these crimes, sometimes with the suspected complicity of investigative authorities.”

[22]     After reviewing the objective evidence before me, I find that despite some improvements to the legal situation for same-sex couples, and some improvements to the laws preventing discrimination, LGBTI people in Mexico face an ongoing risk of violence in a culture that still places a significant stigma on sexual orientation that is anything other than heterosexual. With the exception of a few safe zones in one or two cities, the claimant would not be free to live openly as a bisexual woman in Mexico. Based on the evidence before me I, therefore, find that the claimant has established that she would face a serious possibility of persecution in Mexico based on her sexual orientation.

[23]     In terms of state protection, the evidence established that authorities are often complicit in crimes against the LGBT community and in any event, often fail to protect the victims. The claimant herself went to the police on a couple of occasions to report the attacks against her and nothing was done. I, therefore, find that state protection would not be reasonably forthcoming to the claimant in this case.

[24]     In terms of any internal flight alternative, the evidence before me establishes that the treatment of LGBT persons varies from state to state. According to document 6.4 of the National Documentation Package, the worst places where sexual minorities are most ostracized are Merida, Yucatan, Leon, Guanajuato, Monterrey, Nueva Leon and Jalisco. Even though Mexico City and Guadalajara are said to be friendlier, the evidence establishes that LGBT people are not immune from violence in any city. The claimant cannot be expected to hide in any internal flight alternative or restrict her movements to one or two neighbourhoods in a city where she may or may not be safe. I, therefore, find that there is no viable internal flight alternative available to the claimant in this case.

CONCLUSION

[25]     I find that the claimant is a Convention refugee pursuant to s. 96 of the Act and the Board, therefore, accepts her claim today.

[26]     All right, thank you very much everyone, that concludes our hearing, and I wish you the best of luck.

— DECISION CONCLUDED

Categories
All Countries Mexico

2019 RLLR 37

Citation: 2019 RLLR 37
Tribunal: Refugee Protection Division
Date of Decision: November 27, 2019
Panel: David Jones
Country: Mexico
RPD Number: VB8-06002
ATIP Number: A-2021-01124
ATIP Pages: 000210-000216


— DECISION COMMENCED

[1]       PRESIDING MEMBER: I have considered your testimony and the other evidence in this case and I am ready to render my decision for your claims. This is the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada for the claims of the principal claimant, namely [XXX] and her minor son [XXX] and the associate claimant, her common-law spouse,  [XXX], who are citizens of Mexico who are seeking refugee protection pursuant to s. 96 and 97(1) of the Immigration and Refugee Protection Act.

[2]       The principal claimant was appointed as the designated representative of the  minor claimant. I have also reviewed and applied the Chairperson’s guideline on women refugee claimants fearing gender-related persecution.

ALLEGATIONS

[3]       The specifics of the claims are set out in the narrative of the basis of claim forms. In summary, the claimants fear further abuse from the principal claimant’s ex-husband, namely [XXX], who is also the father of the minor claimant.

[4]       The claimants allege that in October 2009 the principal claimant met [XXX]. In [XXX] 2010 the principal claimant found out she was pregnant and decided to get married. During the pregnancy [XXX] started controlling and becoming abusive towards the claimant. On [XXX], 2011 the principal claimant married [XXX] and days after the marriage the abuse got worse.

[5]       I am not going to list all the incidents that the claimant testified to and described in the narrative attached to the basis of claim forms, but I will note that the incidents occurred in Mexico and involved verbal, physical, emotional and sexual abuse. The minor claimant witnessed some of the abuse, and at least in one instance involving [XXX] violently shaking the child. An incident on [XXX], 2014, led to the principal claimant deciding to move out with help from her family. The principal claimant also filed a police report but the response from the authorities was that they expected a husband and wife to solve their own problems.

[6]       [XXX] filed for divorce in [XXX] 2014 and shortly after, the divorce was granted. The principal claimant was awarded custody and [XXX] retained his parental rights. At the end of 2014 [XXX] started dating someone else and the principal claimant barely heard from him for two years. In late 2016 the adult claimants reconnected after they knew each other from junior high school and eventually moved in together. In [XXX] 2016 [XXX] found out about the new relationship and he threatened the principal claimant that he would break them up.

[7]       On [XXX], 2017, the principal claimant went to the U.S. to work to raise money and her sons stayed with her mother. [XXX] started threatening to report the principal claimant to U.S. authorities and to take away their son so the principal claimant decided to return to Mexico. On [XXX], 2017, [XXX] asked for a visit with their son, which the principal claimant allowed. When the principal claimant went to pick up her son [XXX] yelled and physically assaulted the principal claimant and violently shook the minor claimant. [XXX] was angry that the claimants were living together.

[8]       The principal claimant called the police and left with their son and filed a police report. The police again said that they should resolve their problems themselves.

[9]       The associate claimant has also been threatened seven or eight times and has been physically assaulted by [XXX]. For example, on [XXX], 2017, around [XXX]. the associate claimant was approached by [XXX], who yelled things such as, “Leave my wife alone,” and threatened the associate claimant if he did not stop seeing the principal claimant. During this incident [XXX] punched the associate claimant in the stomach, winding him, and then left.

[10]     In early 2018 the associate claimant finished his architectural program and to celebrate his parents paid for him to travel to Canada. While the associate claimant was in Canada [XXX] continued to harass the principal claimant, including at her workplace. On [XXX], 2018, the joint claimant’s family paid for the principal claimant and her son to travel to Canada as well to join the associate claimant.

[11]     Since the claimants have been in Canada [XXX] has continued to try and locate the principal claimant through her family. In the past few months the principal claimant’s brother, aunt and two cousins have all been contacted by [XXX] in his attempts to locate the claimants. [XXX] also started a court action in Mexico regarding custody of the child. The claimants believe through that action, amongst other ways such as through [XXX] wealthy family, [XXX] is able to locate the claimants anywhere in Mexico.

[12]     On [XXX], 2019, the adult claimants were married and the principal claimant is currently seven months pregnant.

DETERMINATION

[13]     I find that the claimants are Convention refugees pursuant to s. 96.

ANALYSIS

Identity

[14]     The claimants’ identities as citizens of Mexico have been established by the Mexican passports located at Exhibit 1.

Nexus

[15]     The allegations support a nexus to a Convention ground for the principal claimant based on her membership in a particular social group as a woman. The allegations further support a nexus to a Convention ground for the associate claimant and minor claimant based on their membership in a particular social group as members of the principal claimant’s family.

Credibility

[16]     I find on a balance of probabilities that the principal claimant has been the victim of domestic violence, as has the minor child who witnessed the abuse and in at least one instance was violently shaken by his father. In making that finding I am relying on the principle that a claimant who affirms to tell the truth creates a presumption of truthfulness unless there are reasons to doubt their truthfulness.

[17]     In this regard the claimants testified in a consistent and straightforward manner that was consistent with their basis of claim forms and supporting documents. There were no relevant inconsistencies in the testimony or contradictions between the testimony and other evidence. I find that the claimants are credible witnesses.

[18]     The claimants also provided documents to support their claims. For example, documents found at Exhibit relate to reports to the police of domestic violence toward the principal claimant and the minor claimant. I have no reason to doubt the genuineness of these documents, and since they relate to the alleged domestic abuse, I place significant weight on these documents to support the allegations and overall claims.

[19]     I find that [XXX] has threatened the associate claimant and abused the minor claimant due to those claimants being a part of the principal claimant’s family. [XXX] threatened the associate claimant by saying: Get away from [XXX].

[20]     And: I am going to kill you.

[21]     Aside from witnessing the abuse of his mother the minor claimant was also violently shaken by [XXX] when [XXX] was abusing the principal claimant. There is no evidence that [XXX] ever threatened or abused the associate claimant or the minor claimant when he was not related to the principal claimant. As such, I find that the harm toward the associate claimant and the minor claimant are an extension of [XXX] abusive behaviour towards the principal claimant.

[22]     I find that the claimants have established on a balance of probabilities the facts that they have alleged in their claim. The claimants testified that they fear being persecuted because [XXX] will locate and continue to harm them if they were to return to Mexico.

Objective Basis

[23]     The objective basis supports the claimant’s fear of returning to Mexico. Domestic violence continues to be prevalent in Mexico. Numerous reports in the national documentation package found at Exhibit 3 indicate that domestic violence is prevalent in Mexico. For example, NDP items 5.10 state that:

… violence against women in Mexico is a “pandemic.”

[24]     The report goes on to note that 63 percent of women in Mexico have suffered abuse by men, and that most of the violence is at the hands of their partners.

[25]     While the objective evidence indicates that the Mexican government has attempted to enact legislation and policies to reduce the violence faced by women, as noted in NDP 5.2, violence against women continues to be a widespread problem. This is also indicated in the U.S. State report for Mexico at NDP item 2.1. that states:

State and municipal laws addressing domestic violence largely failed to meet the required federal standards and often were unenforced.

[26]     Based on the totality of the evidence before me I find that the claimants have established a well-founded fear of persecution if they were to return to Mexico. I further find that the principal claimant’s testimony regarding her ex-husband demonstrates that he has a continuing interest in locating and harming the principal claimant and her family, and therefore they have established a serious forward-looking risk if they were to return to Mexico.

State Protection

[27]     With respect to domestic violence the objective evidence as noted above supports the claimants’ testimony that there is no operationally-effective state protection available to them in their particular circumstances. Numerous items in the NDP indicate the challenges facing Mexico regarding state protection against crime generally. For example, NDP item 7.18 notes that Mexico has an extremely low rate of prosecution for all forms of crime. Prosecutions can take years to complete and that crime is unreported due to the generalized mistrust in authorities.

[28]     Additional information in the NDP item 2.1 regarding violence against women indicate that while:

There were justice centres that provided services, including legal services and protection. However, the number of cases far surpass institution capacity.

[29]     NDP item 5.10 states that:

…violence against women are not properly investigated, adjudicated or sanctioned.

[30]     This report goes on to state that:

… police, do not perform their duties adequately, treating domestic violence as though this was the ‘normal’ state of affairs.”

[31]     I note that this is the response the principal claimant received both times she tried to report violence against her to the police. Based on the evidence I find there is no operationally- effective state protection available to the claimants in their circumstances. As such, the claimants have rebutted the presumption of state protection.

Internal Flight Alternative

[32]     For the reasons below I find the claimants do not have an internal flight alternative. When determining whether an internal flight alternative is available in Mexico, I must find both that a claimant would not be subject personally to a danger of torture or to a risk of life or a risk of cruel and unusual treatment or punishment or face a serious possibility of persecution in the proposed internal flight alternative, and two, the conditions in that part of the country are such at it would be objectively reasonable in all the circumstances including those particular to the claimant for them to seek refuge there.

[33]     The burden placed on claimants is fairly high in order to show that an internal flight alternative is unreasonable. It requires nothing less than the existence of conditions that would jeopardize their life and safety if they relocated to the internal flight alternative. Actual and concrete evidence of adverse conditions is required. The objective evidence supports finding a serious possibility of persecution would exist for the claimants throughout Mexico.

[34]     In a response to information request at NDP item 5.9 on the right of a parent to know the location of their child when a spouse relocates within Mexico indicates that a parent who has parental authority but who does not live with the child has the legal right to know the child’s address and telephone number. The report further indicates that parental authority is automatically granted to both parents, but family judges can order that a parent loses that right.

[35]     With respect to the minor child the ex-husband retained his parental rights in the order granting the divorce and there has been no further orders with respect to parental authority. As such, the ex-husband would have the right to apply through the courts to obtain the child’s address. I find that the ex-husband’s history of behaviour indicates he has a continuing motivation, and given his parental authority, he also has the means to use the Mexican legal system to be able to track the principal claimant throughout Mexico.

[36]     Based on the totality of the evidence I find the claimants have established that there is no viable internal flight alternative available to them. I find that the claimants would face a serious possibility of persecution throughout Mexico given that the ex-husband has shown a history of continuing to abuse the claimants and his ability to use the Mexican state to assist in locating them.

CONCLUSION

[37]     For the reasons above I determine that the claimants are Convention refugees pursuant to s. 96 of the Act, given they have established that they would face a serious possibility of persecution and the Board therefore accepts their claims.

[38]     Given I am granting protection under s. 96 of the Act, I find it unnecessary to consider their claims under s. 97.

— DECISION CONCLUDED

Categories
All Countries Mexico

2019 RLLR 23

Citation: 2019 RLLR 23
Tribunal: Refugee Protection Division
Date of Decision: December 16, 2019
Panel: Kevin Fainbloom 
Counsel for the Claimant(s): Clement Osawe
Country: Mexico
RPD Number: TB8-27168
Associated RPD Number(s): TB8-27821, TB8-27316
ATIP Number: A-2021-01124
ATIP Pages: 000148-000150


DECISION

[1]       MEMBER: So, these are the reasons into the determination that the, that Mr. [XXX], [XXX], his wife [XXX] and their youngest son [XXX] are people in need of protection. The claimants are citizens of, yeah, the-, the-, the claimants that remain at this point in the claim are citizens of Mexico claiming refugee protection pursuant to Section 96 and 97 of the Immigration and Refugee Protection Act.

[2]       The allegations of the claimants is contained in the Basis of Claim form narratives. I’m going to briefly summarize those allegations. [XXX], the principal claimant was a [XXX] and dump [XXX] and [XXX] in Mexico from [XXX] 2014 until [XXX] 2017. He worked in a number of States that bordered the United States. In [XXX] 2016, he was befriended by 8 men who became very friendly with him and they spent some time eating together at a near-, at a restaurant. After a number of different encounters with the same men, the men indicated to the principal claimant that they wanted him to work for their company. These men indicated they knew about his wife, his children, he-, they knew where they lived and so on. They said that they were members of the Gulf cartel and they needed his assistance.

[3]       The principal claimant told them he needed time to think about this offer. On [XXX] 2016, the principal claimant was kidnapped, taken to a ranch and tortured. They showed him on a video phone that his wife had been kidnapped as-, had been taken, she was being-, and she was being raped, while their youngest child-, while the child was in a different room. They also showed him a video in which they were killing people and chopping up their bodies. They ordered the principal claimant to get the company’s [XXX] and take them to the border with the United States. On [XXX], they shot up his car and left pictures of people that had been chopped up. On [XXX], they-, they went to his house, kidnapped him from the home, took him to an isolated area where he was beaten. Another man was brought to this area and murdered in front of the principal claimant. The principal claimant returned to his work on [XXX] the [XXX], he gave notice that the was going to be resigning from his position. He quit his job on [XXX] the [XXX]. Two days later he and the other claimants relocated to hide themselves at the principal claimant’s in-law’s home. Unfortunately, the death threats continued, the principal claimant was able to leave Mexico and travelled and made his way to Canada. His wife and two children remained in Mexico and left at a later time, until July of last year when they-, they were all joined together in Canada. They are now afraid to return to Mexico.

[4]       After the purposes, the reason I just want to clarify that the claim of Justice [XXX], this couples’, this couples’ oldest child was withdrawn at the outset of hearing as this child is an American citizen and who is not intending to pursue a claim against the United States.

[5]       The three remaining claimants that is [XXX], [XXX] and [XXX] I find that they are not Convention refugees as they do not have a well-founded fear of persecution for a Convention ground in Mexico. However, I find that they are people in need of protection, as their removal to Mexico would subject them personally to a risk to their lives.

[6]       The claimant’s identities as-, as citizens of Mexico is established by the documents on file which include copies of their passports.

[7]       With respect to credibility, as I indicated to the principal claimant, I have some concerns which are properly called plausibility concerns. Specific plausibility of the family remaining at their in-law’s home after they had been found there. The plausibility of their continuing to send their son to school. The plausibility of the principal claimant giving notice that he was going to be leaving his work, rather than just working-, just leaving quietly. However, notwithstanding these concerns, there are a number of corroborative documents that are helpful in establishing the credibility. I do believe the principal claimant has been traumatized in some fashion. The female adult claimant was questioned and provided some evidence which I thought was quite credible and referred to her being subject to rapes. The claimant’s allegations are not inconsistent with country conditions and the types of things that can happen to people there who are-, who are in some form of conflict or trouble with the-, with the Gulf cartel. So, on a balance of probabilities, I accept the claimant’s allegations to be credible. That is, I accept that because of the principal claimant’s ability as a [XXX], as a [XXX], he was of interest to the Gulf cartel. I accept that he was pursued by the Gulf cartel to work for them and I accept that Gulf cartel was intent on harming him and his family when they came to believe that he was not going to be co-operative.

[8]       Given that I accept those allegations, the current conditions in Mexico indicate that there is an objective basis to their fear of returning to that country. Gulf cartel and other-, other organized criminal groups have been implicated in numerous killings and acting with impunity and most tragically at times in league with corrupt federal state, local and security officials. Criminal organizations have been involved in forced disappearances, torture, sexual violence, kidnappings and-, and so on. So, I believe if these claimants return to Mexico, their lives would be at risk of these agents of harm.

[9]       I have considered whether adequate state protection would be available or whether there might be a viable internal flight alternative. I find given the complicity, the documents referred to of the criminal organizations working with federal, state, local and security officials, that adequate state protection would not be provided. I would note, that the principal claimant described how he would be escorted by the army and the police when he [XXX], they wanted him to drive to the-, to the border with the United States, which obviously suggests again, corrupt officials being involved in these activities. So, I don’t believe adequate state protection would be available with respect to a viable internal flight alternative, I find there would not be one. There’s insufficient evidence before me that the Gulf cartel cannot reach to anywhere in Mexico, if so desired. In particularly, in light of the corruption, I’ve just referred to it is quite reasonable to assume that if they were intent on finding someone they could find a person who is living above ground, that is leaving and operating in-, in any free manner. So, I did not believe there would be a­ ‘ a viable internal flight alternative.

[10]     So, to conclude, I find the claimants face a risk to their lives if returned to Mexico and accordingly, I find the claimants to be people in need of protection pursuant to Section 97(1)(b) of the Immigration and Refugee Protection Act.

———- REASONS CONCLUDED ———-

Categories
All Countries Mexico

2019 RLLR 6

Citation: 2019 RLLR 6
Tribunal: Refugee Protection Division
Date of Decision: May 7, 2019
Panel: Marcelle Bourassa
Country: Mexico
RPD Number: MB8-15797
ATIP Number: A-2020-01124
ATIP Pages: 000046-000052


INTRODUCTION

[1]       La demandeure d’asile Madame [XXX], une citoyenne du Mexique, demande l’asile au titre de l’article 96 et du paragraphe 97(1) de la Loi sur l’immigration et la protection des réfugiés.

[2]       Le Tribunal a nommé la demanderesse comme personne vulnérable après avoir examiné une requête en ce sens ainsi que des rapports psychologiques et psychosociaux concernant la demandeure.

[3]       Le Tribunal a accepté comme accommodement que l’on inverse l’ordre des interrogatoires et qu’il soit fourni une interprète de sexe féminin. Le Tribunal a également accepté la présence d’observatrices à titre de soutien psychologique à la demanderesse.

[4]       Tout au long de l’audience et en rendant sa décision, le Tribunal a tenu compte des Directives du Président relatives aux demandeures d’asile qui craignent la persécution en raison de leur sexe.

ALLÉGATIONS

[5]       La demanderesse est allée vivre à [XXX] en [XXX] 2011. Elle gagnait sa vie en travaillant dans différents clubs et discothèques comme serveuse, elle vendait des shooters d’alcool. Elle travaillait toujours dans le même domaine à l’époque où des cartels de drogues tentaient de saisir le contrôle de la vente de drogues et de services sexuels sur ce territoire. Les médias rapportaient des assassinats et des enlèvements de personnes qui tentaient de s’opposer aux projets de ces cartels.

[6]       Madame, quant à elle, travaillait pour un club dont les propriétaires étaient des Chrétiens qui offraient des spectacles de qualité. Ce genre de club était vraisemblablement plus difficile à pénétrer pour ces cartels de vente de drogues.

[7]       La demanderesse a connu un photographe qui a été approché par un cartel pour vendre la drogue et des services de prostitution à la clientèle de ce club. Lorsque celui-ci a refusé de coopérer, il a été enlevé, aucune rançon n’a été demandée, il a été torturé et ensuite relâché.

[8]       Madame a décidé de cesser de travailler dans ce milieu. Elle s’est retrouvée sans emploi pendant quelques mois. Elle a par la suite joint une équipe qui vendait des billets pour ces spectacles, de jour, auprès d’une clientèle qui restait dans un hôtel de luxe.

[9]       Le [XXX] 2017, elle a été abordée à la fin de la journée sur la plage par des gens qui lui ont demandé de coopérer pour vendre de la drogue et des services de prostitution à cette clientèle. La demanderesse a exprimé son refus, elle a été frappée, menacée et a subi des attouchements. À l’arrivée de certains touristes sur la plage, les individus qui l’avaient ainsi traitée se sont enfuis.

[10]     Dès le lendemain, elle s’est présentée pour offrir sa démission. Elle a raison de croire que les agissements des membres de ce cartel étaient connus de la gestion puisque dès son arrivée, les gestionnaires avaient les documents nécessaires pour la congédier.

[11]     Le [XXX] 2017, lorsqu’elle retournait chez elle vers les [XXX], elle a été interceptée dans la rue devant sa résidence. Elle a été enlevée, un mouchoir couvert de produits chimiques a été placé sur son visage, ce qui lui a fait perdre connaissance un certain temps. Lors de cet enlèvement, elle a été violemment rossée, elle a été passée à tabac, elle a été violée et elle a été marquée sur son corps avec des brûlures de cigarette apposées sur ses jambes avec une parfaite symétrie. La demanderesse croit qu’il s’agissait d’une façon de marquer et identifier les femmes qui sont sous l’emprise de ce cartel.

[12]     Elle a ensuite été abandonnée. La demanderesse n’a pas porté plainte auprès des autorités en raison du fait qu’il était bien connu que celles-ci étaient soit complices de ces cartels, ou en avaient peur et refusaient d’agir. Ne voulant pas alerter des policiers complices et par le fait même, s’attirer des ennuis supplémentaires, elle n’a pas été à l’hôpital, elle s’est soignée elle-même comme elle l’a pu.

[13]     Elle a quitté la ville pour aller à [XXX], d’abord chez sa mère et au fil des mois, par la suite, dans son propre appartement. Environ six mois plus tard, elle était prête à tenter de travailler pour y refaire sa vie. Elle a trouvé des emplois dans le domaine immobilier, dans la restauration.

[14]     À la mi-[XXX] 2018, elle a reçu un appel. On lui a dit qu’on l’avait retrouvée et on lui a même précisé ce qu’elle portait ce jour-là. Apeurée, la demanderesse a quitté son emploi, elle a quitté son appartement et elle est retournée chez sa mère. Juste avant son départ du Mexique, elle a pu observer des voitures devant la maison de sa mère. Les occupants de celles-ci semblaient surveiller la maison.

[15]     Elle a quitté son pays le [XXX] 2018, elle est arrivée au Canada le même jour et a demandé l’asile le mois suivant. Depuis son arrivée au Canada, la demanderesse a su qu’en [XXX] 2018, des gens sont entrés chez sa mère, ils l’ont ligotée et frappée, ils l’ont tenue captive pendant plusieurs heures. Ils ont fouillé la maison et ont insisté pour savoir où se trouve la demanderesse.

ANALYSE

Identité

[16]     L’identité de la demanderesse a été établie par la preuve testimoniale ainsi qu’à l’aide de la preuve documentaire déposée au dossier. Celle-ci inclut des photocopies de passeport émis par les autorités mexicaines, les originaux desquels ont été saisis par les autorités d’immigration canadiennes. Le Tribunal est satisfait de la preuve quant à l’identité de la demanderesse.

Crédibilité

[17]     Le Tribunal se doit de mentionner que l’état de détresse de la demanderesse est visible dans son visage et dans ses gestes. Malgré cela, elle a répondu aux questions de son conseil et du Tribunal de façon directe. Elle a offert des détails lorsque cela fut requis. Son témoignage était souvent émotif.

[18]     Elle a également déposé en preuve des documents pour corroborer les emplois qu’elle a eus. Le Tribunal a également en preuve des photos des marques de brûlures de cigarette sur ses jambes auxquelles elle a fait référence auparavant. De plus, la demanderesse a également offert de nombreux détails qui ont été relatés aux intervenantes dans le domaine psychologique dont les rapports sont en preuve. Enfin, la demanderesse a déposé des lettres de différents témoins pour appuyer sa demande.

[19]     Son témoignage était tout à fait conforme au narratif déposé en annexe, son formulaire Fondements de la demande d’asile, et les faits relatés dans les rapports psychologiques et psychosociaux ainsi que dans les lettres d’appui.

[20]     Le Tribunal croit la demanderesse.

Application de l’article 96 de la Loi sur l’immigration et la protection des réfugiés

[21]     Les motifs des agents de persécution sont multiples. D’une part, leur but ultime est de faire de l’argent. Ils ont ciblé la demanderesse, la considérant comme étant une femme attirante qui serait capable d’aller chercher une clientèle importante pour la vente de drogues et de services de prostitution.

[22]     Les agents de persécution sont possiblement motivés par un esprit de vengeance ou la volonté de donner l’exemple à d’autres qui auraient pour idée de refuser de coopérer avec eux, mais essentiellement, lorsqu’une personne est violée, c’est en raison du fait qu’elle appartient au groupe social des femmes, qu’elle est victime. Ainsi, le lien avec la Convention est établi.

[23]     Quant à savoir s’il existe une crainte bien fondée prospective, le Tribunal note que bien que la demanderesse ait quitté son emploi et tenté de refaire sa vie à [XXX] qui, par voiture, se trouve à 24 heures de là où les problèmes ont commencé, ses persécuteurs ont fini par la retrouver environ six mois plus tard. Ils l’ont menacée, ils ont surveillé la maison où elle résidait et ils ont fini par traiter la mère de la demanderesse avec violence dans le but de retrouver la demanderesse.

[24]     Le Tribunal estime qu’il est raisonnable de croire qu’elle encourt plus qu’une simple possibilité de persécution si elle devait retourner dans son pays aujourd’hui. Ainsi, l’article 96 trouve son application.

Protection de l’État

[25]     La demanderesse n’a pas demandé la protection des autorités mexicaines pour se protéger. Néanmoins, elle a établi par la preuve documentaire que les cartels qu’elle craint ont su s’imposer, malgré les mesures de protection de l’appareil étatique. Ils ont su faire régner un niveau de violence endémique, soit en s’assurant la corruption de certains policiers ou encore, en faisant régner la terreur au sein de celles-ci.

[26]     Le Tribunal dispose d’une preuve claire et convaincante de l’incapacité ou du manque de volonté de ces autorités de protéger ses citoyens contre la violence exercée par ces cartels, tel que le reflète le niveau épouvantable de viols et de violence qui se produisent en toute impunité.

Possibilité de refuge intérieur

[27]     Le Tribunal n’a pas abordé directement la question de la possibilité de refuge intérieur dans les questions posées à la demanderesse. Néanmoins, la preuve révèle que la demanderesse a tenté de refaire sa vie à [XXX], à plus de 24 heures de route, si on se déplace en voiture. La demanderesse a été retrouvée et menacée à cet endroit, peu après avoir repris le travail.

[28]     Cela porte à croire que ces cartels bénéficient de la complicité de gens dans l’appareil étatique qui ont accès aux banques de données des travailleurs. Quoi qu’il en soit, ils ont réussi à a trouver et n’ont pas hésité à la menacer et même, à faire violence à sa mère pour essayer de la retrouver.

[29]     Le Tribunal estime que la demanderesse a établi qu’il n’existe aucun endroit où elle pourrait vivre normalement, en toute sécurité au Mexique. Dans de telles circonstances, il n’est pas nécessaire d’examiner le deuxième volet de la possibilité de refuge intérieur.

CONCLUSION

[30]     Après examen de l’ensemble de la preuve, le Tribunal conclut que Madame [XXX] a qualité de réfugiée au sens de la Convention et par conséquent, accueille sa demande d’asile.

Categories
All Countries Mexico

2019 RLLR 15

Citation: 2019 RLLR 15
Tribunal: Refugee Protection Division
Date of Decision: August 30, 2019
Panel: David D’Intino
Counsel for the claimant(s): Alfonso Mejia-Arias
Country: Mexico
RPD Number: TB8-17496
Associated RPD Numbers: TB8-17497
ATIP Number: A-2020-01124
ATIP Pages: 0000109-0000118


[1]       [XXX] (principal claimant) and her common-law spouse [XXX] (the associate claimant) both are citizens of Mexico and claim refugee protection pursuant to ss. 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA)1.

ALLEGATIONS

[2]       The allegations are fully set out in the principal claimant’s basis of claim (BOC) form2. To summarize, the principal claimant fears persecution by corrupt state actors on the basis of her political opinion and her work as a [XXX] in Mexico. The associate claimant fears persecution as the spouse of the principal claimant and also a risk to his life or of cruel and unusual treatment or punishment by the same corrupt state actors.

DETERMINATION

[3]       I find that the principal claimant is a Convention Refugee pursuant to s. 96 of the IRPA, as she faces a serious possibility of persecution on account of her member in a particular social [XXX]. I also find that the associate claimant is a Convention refugee on the basis of membership in a particular social group, a family member of a [XXX], as the spouse of the principal claimant.

IDENTITY

[4]       The claimants have established their identities as nationals of Mexico by their Mexican passports3.

ANALYSIS

Credibility

[5]       The claimants were credible witnesses. Their evidence was logical, consistent and free from material contradictions, omissions or implausibility. They offered spontaneous details without prompting and were both highly articulate when discussing specifics. The principal claimant in particular was impressive when discussing her passion for [XXX] and the ideals of freedom of expression, despite her young age.

[6]       As such, I make the following findings of fact:

a.         The principal claimant was a journalist in Mexico. She started her career in 2011 while she was still in University. She began working as a [XXX] but felt that she was only being used to attract men to the publication and not for her intellect, so she subsequently began working for [XXX] in or around 2017;

b.         In 2016, the associate claimant began working for the [XXX] in the state of [XXX]. After working for the [XXX] for a short time, in or around [XXX] of 2016 the associate claimant was approached by his superior and told he was being considered for an “under the table” supervisor position. All he had to do was to fudge some numbers and sign off on the invoices;

c.         The associate claimant was not comfortable in doing this because he knew it was wrong and so discussed the offer with his spouse. The principal claimant saw this as an opportunity to have her work taken seriously and to expose corruption within the [XXX] and so they attempted to collect further information and further details of the scheme;

d.         The associate claimant testified that his superior [XXX] wanted him to call the vendors of supplies to the [XXX] and modify the invoices, effectively engaging in “money laundering”. In order to not arouse suspicion, the associate claimant played along for a while, in order to gather more evidence for the principal claimant to write her story;

e.         The principal claimant wrote a draft of the article, which was never published.4 She testified that she shared her notes with only four people. Her editor warned her to be careful because of what she was getting involved in, but did not discourage her from investigating and writing the article;

f.          The day before the [XXX] 2016 holidays, after work the associate claimant was leaving work to pick up his spouse when he was cut off by two vehicles. Armed men exited one of the vehicles, surrounded the claimant and threw him to the ground. They put a gun to his head and told him that if the principal claimant published her article on the Health Ministry fraud, that they would gang rape her in front of the associate claimant, chop her up into pieces and the burn the associate claimant to ashes;

g.         The claimants agreed that the associate claimant would play along and pretend to call vendors and pretend to cooperate so that his employers who were watching him would not suspect anything untoward;

h.         The claimants then left Mexico on [XXX], 2017 and came to Canada. They did not claim refugee status until April 3, 2018 when the associate claimant was detained by Ontario Provincial Police during a traffic stop.

NEXUS

[7]       I find that the principal claimant [XXX] has multiple nexuses to the Convention. Counsel argued that she faces persecution on account of her political opinion, given that the fraud and corruption she has uncovered is directly tied to the government of [XXX]. She also faces persecution on account of her gender as a woman in Mexico who has been threatened with sexual violence. Lastly, counsel submits that she is a journalist and faces persecution on that basis and which is a particular social group under s. 96.

[8]       For the purposes of this decision I will conduct my analysis on the basis of her membership in a particular social group, journalists.

[9]       The associate claimant also has multiple nexuses to the Convention. I will conduct my analysis on the basis of his membership in a particular social group, the family member of a [XXX].

WELL FOUNDED FEAR OF PERSECUTION

Subjective Fear

[10]     The claimants each fear persecution on a Convention ground. The principal claimant fears sexual violence and death on account her work as a journalist to expose corruption within the [XXX].

[11]     The associate claimant fears torture and death on account of his refusal to engage in the same corruption but also as retaliation for his common-law partner’s [XXX].

[12]     The claimants knowingly remained in Canada for over a year before claiming refugee status. It was only the associate claimant’s arrest in [XXX] of 2018 following a traffic stop that prompted them to make their asylum claim. Such a delay is assessed vis-a-vis the claimants’ credibility and subjective fear5.

[13]     The principal claimant testified that they did not intend to remain in Canada, but rather were hoping to return to Mexico after the Federal election (which resulted in the victory of Andres Manuel Lopez Obrador). Unfortunately, the claimant says that the election did not spur positive change vis-a-vis the protection of journalists and combatting institutional corruption, and therefore claiming refugee status was a last resort.

[14]     Given that I found the claimants to be very credible, I accepted this explanation and made no adverse finding regarding their credibility. I accept that the claimants subjectively fear persecution on Convention grounds if they returned to Mexico.

Objective Basis

[15]     The principal claimant’s article on the fraud at the Health Ministry was never published, though she testified that she did attempt to have it published. She provided a copy to me in the claimants’ disclosure package.6 The principal claimant testified that only four people knew about that article, and yet someone with an interest in preventing its publication was informed of its existence which then prompted a violent attack and threats of death against the associate claimant.

[16]     I have already found the claimants to be credible. Therefore, the only reasonable inference I can draw is that one of those four people at [XXX] leaked the existence of that article to corrupt actors in the [XXX], who then directed armed men to intercept and threaten the associate claimant.

[17]     Corruption is endemic throughout all levels of government in Mexico. The NDP for Mexico paints a bleak picture of the police, prosecution and security services overall. For example, item 9.6 describes how some members of the Public Ministry will not even register a complaint without first receiving a bribe.7

[18]     Item 9.108 highlights the following about the Mexican political and judicial system:

At least 14 former or current governors are currently under investigation for corruption, some of them for colluding with the organized crime groups that are largely responsible for Mexico’s rising violence. 1 In 2017, Mexico placed last among OECD countries in Transparency International ‘s Corruption Perceptions Index, with an overall ranking of 135 out of 180 countries, putting it in the company of Honduras, Paraguay, Kyrgyzstan, Russia, and others.

Blatant corruption and government abuse in a moment of such extreme violence has greatly weakened Mexicans’ confidence in public institutions. A September 2017 Pew Research Center survey found corruption to be Mexicans’ top public concern, with 84 percent of those surveyed saying corrupt political leaders were a “very big problem” in their country and 79 percent saying the same about corrupt police officers-up 12 and 9 percent, respectively, from 2015.

High public perception of corruption extends into the judicial sector as well: as seen in Figure 1, Mexico’s most recent national victimization survey suggests over 60 percent of the population perceives the country’s prosecutors and judges as corrupt.

According to the same victimization survey, an estimated 94 percent of crimes in Mexico are never reported or investigated, primarily because victims distrust authorities or because they believe reporting crimes is a waste of time. This fuels violence and impunity, as any crime that goes unreported also goes unpunished, allowing criminal groups and corrupt officials to perpetrate crimes without fear of being held accountable. In 2017, Mexico had the fourth highest impunity index on the Global Impunity Index, and it ranked first out of the 21 countries in the Americas that were analyzed.

[19]     In considering all of the evidence available to me, I find that the claimants have established an objective basis for their fear of persecution in Mexico.

STATE PROTECTION

[20]     There is a presumption that, except in situations where the state is in complete breakdown, the state is capable of protecting its citizens. The presumption that a state is capable of protecting its citizens underscores the principle that international protection comes into play only when a refugee claimant has no other recourse available9. Having canvassed the country conditions documents, the panel finds that the Mexican government is in effective control of its territory and has in place a functioning security force to uphold the laws and constitution of the country10. Therefore, the burden of attempting to show that one should not be required to exhaust all avenues of domestic recourse is a heavy one11.

[21]     The documentary evidence before me indicates that Mexico is a democracy, and there are free and fair elections. There is a relatively independent and impartial judiciary. Therefore, in countries such as Mexico the claimant must do more than merely show that he or she went to see members of the police force and that those efforts were unsuccessful.

[22]     There is a high incidence of violence in Mexico. The violence is largely attributable to drug trafficking and organized crime. While there is corruption in Mexico, the government is making efforts to deal with this problem12.

[23]     However, though the state of Mexico may have the best of intentions and has the appropriate laws in place, the concern for the panel is the operational adequacy of those efforts in providing adequate state protection. Based on all of the materials available to me, it is evident that Mexico is simply unable to protect journalists from persecution, torture or death.

[24]     For example, item 2.1 of the Mexico NDP contains a human rights report issued by the U.S. Department of State13 and I note the following passage:

Human rights issues included reports of the involvement by police, military, and other state officials, sometimes in coordination with criminal organizations, in unlawful or arbitrary killings, forced disappearance, torture, and arbitrary detention by both government and illegal armed groups; harsh and life-threatening prison conditions in some prisons; impunity for violence against journalists and state and local censorship and criminal libel; and violence targeting lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons.

Impunity for human rights abuses remained a problem, with extremely low rates of prosecution for all forms of crimes. The government’s federal statistics agency (INEGI) estimated 94 percent of crimes were either unreported or not investigated.

The same document14 at page 15, states the following:

Violence and Harassment: Journalists were murdered or subject to physical attacks, harassment, and intimidation (especially by state agents and transnational criminal organizations) due to their reporting. This limited media’s ability to investigate and report, since many of the reporters who were killed covered crime, corruption, and local politics. According to the NGO Article 19, as of December 5, nine journalists had been killed because of their reporting.

Perpetrators of violence against journalists acted with impunity. According to Article 19, as of August the impunity rate for crimes against journalists was 99.7 percent. In 2017 there were 507 attacks against journalists, according to Article 19. Since its creation in 2010, the Office of the Special Prosecutor for Crimes Against Journalists (FEADLE), a PGR unit, won only eight convictions, and none for murder, in the more than 2,000 cases it investigated. On August 25, FEADLE won its first conviction in the new justice system, obtaining a sentence against Tabasco state police officers for illegally detaining a journalist because of his reporting.

Government officials believed organized crime to be behind most of these attacks, but NGOs asserted there were instances when local government authorities participated in or condoned the acts. According to Article 19, in the last five years, 48 percent of physical attacks against journalists originated with public officials. Although 75 percent of those came from state or local officials, federal officials and members of the armed forces were also suspected of being behind attacks against journalists.

[25]     Furthermore, in this claim the agents of persecution are apparently acting at the behest of rogue state actors. Where the agent of persecution is the state itself or acting at the behest of corrupt state actors, there is no state protection. Furthermore, where the failure of state to protect its citizens forms a broader pattern of failure throughout the country, the inadequacy of state protection is made out.15

[26]     In considering all of the evidence presented, particularly the objective country documentation which supports the testimony of the principal claimant, I find that on a balance of probabilities, state protection for this claimant is inadequate and would not be reasonably forthcoming. I further find that had the claimants approached the authorities for protection, that they would be putting their lives at risk.

INTERNAL FLIGHT ALTERNATIVE

[27]     I proposed Merida, Yucatan as a potential internal flight alternative for the claimants. Merida is almost 1800 kilometres or a 23 hour drive from [XXX], where the claimants resided.

[28]     I asked the principal claimant if she could move to Merida and be safe. She replied as follows:

“No, because I am [XXX] and that is not going to change. That’s what I studied for and worked so hard for and I am not going to throw that away. I always try to expose the truth and expose the power they have. They [NDP for Mexico] can say its [Merida] safe but cannot guarantee your safety regardless of what your career may be”.

[29]     Given that the claimants fear corrupt state actors because of their knowledge of a misuse of public funds, I find on a balance of probabilities that the agents of persecution would have both the desire and the means to locate the claimants throughout Mexico.

[30]     Furthermore, I find that the principal claimant would not cease her [XXX] work. It is a fundamental part of her identity and is clearly important to her. The objective evidence strongly supports the conclusion that journalists are subject to persecution everywhere in Mexico and therefore the principal claimant faces a serious possibility of persecution everywhere in Mexico.

[31]     The associate claimant is going to follow his common law spouse wherever she goes. He faces a similar risk of violence, torture or death as a consequence of her work as journalist and I find that there is no viable IFA in Mexico which is both safe and reasonable for him as well.

CONCLUSION

[32]     I find that the principal claimant is Convention refugee as she faces a serious possibility of persecution on a Convention ground, as a member of a particular social group – [XXX], on a forward-looking basis. Her claim is accepted.

[33]     I similarly find that the associate claimant is a Convention refugee as he faces a serious possibility of persecution on a Convention ground, as a member of a particular social group – the family of a [XXX], on a forward-looking basis. His claim is also accepted.

(signed)          David D’Intino

August 30, 2019

1 Immigration and Refugee Protection Act (IRPA), SC 2001, c 27, as amended.
2 Exhibit 2.1.
3 Exhibit 1.
4 Exhibit 4.
5 Toure v. Canada (Minister of Citizenship and Immigration), 2012 FC 773, at para 55.
6 Exhibit 4.
7 Exhibit 3. National Documentation Package for Mexico (March 29, 2019 version).
8 Ibid.
9 Ward, supra note 5.
10 Exhibit 4
11 Sanchez, Perla Saavedra v. M.C.I. (F.C., no. IMM-1604-07), Barnes, February 5, 2008, 2008 FC 134.
12 Exhibit 3, supra note 3.
13 Exhibit 3. Item 2.1. “Mexico. Country Reports on Human Rights Practices for 2018” U.S. Department of State pg 1.
14 Ibid at p 15.
15 Zhuravlvev v. Canada (Minister of Citizenship & Immigration), [2000] F.C.J. No. 507.